2008 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 No. , 2008 (Attorney-General) A Bill for an Act to amend the Family Law Act 1975, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 3 Schedule 1--Amendments relating to de facto financial matters 4 Part 1--Amendments 4 Family Law Act 1975 4 Part 2--Transitional provisions 81 Division 1--Introduction 81 Division 2--New Act does not apply to de facto relationships breaking down before commencement 81 Division 3--De facto relationships linked to earlier participating jurisdictions 82 Division 4--De facto relationships linked to later participating jurisdictions 85 Division 5--Application of new Act to transitioning agreements 89 Schedule 2--Consequential amendments relating to de facto financial matters 91 A New Tax System (Family Assistance) Act 1999 91 Bankruptcy Act 1966 91 Child Support (Assessment) Act 1989 93 Child Support (Registration and Collection) Act 1988 94 Federal Magistrates Act 1999 95 First Home Saver Accounts Act 2008 96 Income Tax Assessment Act 1997 96 Proceeds of Crime Act 2002 97 Social Security Act 1991 97 Veterans' Entitlements Act 1986 98 Schedule 3--Amendments relating to financial agreements about marriage 99 Part 1--Clarifying that other persons can be parties 99 Family Law Act 1975 99 [Page Break] Family Law Act 1975 104 Part 3--Matrimonial causes 107 Family Law Act 1975 107 Part 4--Other amendments 108 Family Law Act 1975 108 Schedule 4--Other measures 109 Family Law Act 1975 109 Proceeds of Crime Act 2002 109 [Page Break] 2 1975, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Family Law Amendment (De Facto 6 Financial Matters and Other Measures) Act 2008. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 No. , 2008 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1 A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 3. Schedule 2, At the same time as the provision(s) covered items 1 to 32 by table item 2. 4. Schedule 2, The later of: item 33 (a) the commencement of the provision(s) covered by table item 2; and (b) the commencement of the First Home Saver Accounts Act 2008. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 5. Schedule 2, At the same time as the provision(s) covered items 34 to 52 by table item 2. 6. Schedule 3 The day on which this Act receives the Royal Assent. 7. Schedule 4, A single day to be fixed by Proclamation. item 1 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 8. Schedule 4, Immediately after the commencement of 1 January 2003 item 2 section 330 of the Proceeds of Crime Act 2002. [Page Break] 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. [Page Break] 2 Schedule 1--Amendments relating to de facto 3 financial matters 4 Part 1--Amendments 5 Family Law Act 1975 6 1 Title 7 Omit "Children, and", substitute "Children, and to financial matters 8 arising out of the breakdown of de facto relationships and to". 9 2 Subsection 4(1) 10 Insert: 11 breakdown: 12 (a) in relation to a marriage, does not include a breakdown of the 13 marriage by reason of death; and 14 (b) in relation to a de facto relationship, does not include a 15 breakdown of the relationship by reason of death. 16 3 Subsection 4(1) 17 Insert: 18 de facto financial cause means: 19 (a) proceedings between the parties to a de facto relationship 20 with respect to the maintenance of one of them after the 21 breakdown of their de facto relationship; or 22 (b) proceedings between: 23 (i) a party to a de facto relationship; and 24 (ii) the bankruptcy trustee of a bankrupt party to the 25 de facto relationship; 26 with respect to the maintenance of the first-mentioned party 27 after the breakdown of the de facto relationship; or 28 (c) proceedings between the parties to a de facto relationship 29 with respect to the distribution, after the breakdown of the 30 de facto relationship, of the property of the parties or either 31 of them; or 32 (d) proceedings between: [Page Break] 2 (ii) the bankruptcy trustee of a bankrupt party to the 3 de facto relationship; 4 with respect to the distribution, after the breakdown of the 5 de facto relationship, of any vested bankruptcy property in 6 relation to the bankrupt party; or 7 (e) without limiting any of the preceding paragraphs, 8 proceedings with respect to a Part VIIIAB financial 9 agreement that are between any combination of: 10 (i) the parties to that agreement; and 11 (ii) the legal personal representatives of any of those parties 12 who have died; 13 (including a combination consisting solely of parties or 14 consisting solely of representatives); or 15 (f) third party proceedings (as defined in section 4B) to set aside 16 a Part VIIIAB financial agreement; or 17 (g) any other proceedings (including proceedings with respect to 18 the enforcement of a decree or the service of process) in 19 relation to concurrent, pending or completed proceedings of a 20 kind referred to in any of the preceding paragraphs. 21 4 Subsection 4(1) 22 Insert: 23 de facto property settlement or maintenance proceedings means 24 proceedings with respect to: 25 (a) the property of the parties to a de facto relationship or of 26 either of them; or 27 (b) the vested bankruptcy property in relation to a bankrupt party 28 to a de facto relationship; or 29 (c) the maintenance of a party to a de facto relationship. 30 5 Subsection 4(1) (definition of de facto relationship) 31 Repeal the definition, substitute: 32 de facto relationship has the meaning given by section 4AA. 33 6 Subsection 4(1) 34 Insert: [Page Break] 2 (a) in relation to: 3 (i) property, and financial resources, of the parties to a 4 de facto relationship or either of them; or 5 (ii) vested bankruptcy property in relation to a bankrupt 6 party to a de facto relationship; 7 includes conferring rights or obligations in relation to the 8 property or financial resources; and 9 (b) in relation to a Part VIIIAB financial agreement, has a 10 meaning affected by subsection 90UI(3). 11 7 Subsection 4(1) (definition of financial matters) 12 Repeal the definition, substitute: 13 financial matters means: 14 (a) in relation to the parties to a marriage--matters with respect 15 to: 16 (i) the maintenance of one of the parties; or 17 (ii) the property of those parties or of either of them; or 18 (iii) the maintenance of children of the marriage; or 19 (b) in relation to the parties to a de facto relationship--any or all 20 of the following matters: 21 (i) the maintenance of one of the parties; 22 (ii) the distribution of the property of the parties or of either 23 of them; 24 (iii) the distribution of any other financial resources of the 25 parties or of either of them. 26 8 Subsection 4(1) 27 Insert: 28 non-referring State de facto financial law means a law that: 29 (a) is a law of a State that is not a participating jurisdiction; and 30 (b) relates to financial matters relating to the parties to de facto 31 relationships arising out of the breakdown of those de facto 32 relationships. 33 9 Subsection 4(1) 34 Insert: [Page Break] 2 90RA(1). 3 10 Subsection 4(1) 4 Insert: 5 Part VIIIAB financial agreement means an agreement: 6 (a) made under section 90UB, 90UC or 90UD; or 7 (b) covered by section 90UE. 8 11 Subsection 4(1) 9 Insert: 10 Part VIIIAB proceedings means: 11 (a) proceedings under Part VIIIAB for orders with respect to: 12 (i) the maintenance of a party to a de facto relationship; or 13 (ii) the property of the parties to a de facto relationship or of 14 either of them; or 15 (b) proceedings in relation to a Part VIIIAB financial agreement; 16 but does not include any proceedings specified in the regulations 17 for the purposes of this definition. 18 12 Subsection 4(1) 19 Insert: 20 Part VIIIAB termination agreement means an agreement made 21 under paragraph 90UL(1)(b). 22 13 Subsection 4(1) 23 Insert: 24 party to a de facto relationship means a person who lives or has 25 lived in a de facto relationship. 26 14 Subsection 4(1) (definition of property) 27 Repeal the definition, substitute: 28 property means: 29 (a) in relation to the parties to a marriage or either of them-- 30 means property to which those parties are, or that party is, as [Page Break] 2 or 3 (b) in relation to the parties to a de facto relationship or either of 4 them--means property to which those parties are, or that 5 party is, as the case may be, entitled, whether in possession 6 or reversion. 7 15 Subsection 4(1) (definition of property settlement 8 proceedings) 9 Repeal the definition, substitute: 10 property settlement proceedings means: 11 (a) in relation to the parties to a marriage--proceedings with 12 respect to: 13 (i) the property of the parties or either of them; or 14 (ii) the vested bankruptcy property in relation to a bankrupt 15 party to the marriage; or 16 (b) in relation to the parties to a de facto relationship-- 17 proceedings with respect to: 18 (i) the property of the parties or either of them; or 19 (ii) the vested bankruptcy property in relation to a bankrupt 20 party to the de facto relationship. 21 16 Subsection 4(1) 22 Insert: 23 referring State has the meaning given by subsections 90RA(2), 24 (3), (4) and (5). 25 17 Subsection 4(1) 26 Insert: 27 section 90RD declaration means a declaration under subsection 28 90RD(1). 29 18 Subsection 4(1) (definition of spouse party) 30 Repeal the definition, substitute: 31 spouse party means: [Page Break] 2 who is a party to the contemplated marriage, marriage or 3 former marriage to which the agreement relates; or 4 (b) in relation to a Part VIIIAB financial agreement--a party to 5 the agreement who is a party to the contemplated de facto 6 relationship or de facto relationship to which the agreement 7 relates. 8 19 Subsection 4(1) (definition of third party) 9 Repeal the definition, substitute: 10 third party, in relation to a financial agreement or Part VIIIAB 11 financial agreement, means a party to the agreement who is not a 12 spouse party. 13 20 After subsection 4(2) 14 Insert: 15 (2A) A reference in this Act, the standard Rules of Court or the related 16 Federal Magistrates Rules to a party to a de facto relationship 17 includes a reference to a person who was a party to a de facto 18 relationship that has broken down. 19 21 After section 4 20 Insert: 21 4AA De facto relationships 22 Meaning of de facto relationship 23 (1) A person is in a de facto relationship with another person if: 24 (a) the persons are not legally married to each other; and 25 (b) the persons are not related by family (see subsection (6)); and 26 (c) having regard to all the circumstances of their relationship, 27 they have a relationship as a couple living together on a 28 genuine domestic basis. 29 Paragraph (c) has effect subject to subsection (5). 30 Working out if persons have a relationship as a couple 31 (2) Those circumstances may include any or all of the following: [Page Break] 2 (b) the nature and extent of their common residence; 3 (c) whether a sexual relationship exists; 4 (d) the degree of financial dependence or interdependence, and 5 any arrangements for financial support, between them; 6 (e) the ownership, use and acquisition of their property; 7 (f) the degree of mutual commitment to a shared life; 8 (g) whether the relationship is or was registered under a 9 prescribed law of a State or Territory as a prescribed kind of 10 relationship; 11 (h) the care and support of children; 12 (i) the reputation and public aspects of the relationship. 13 (3) No particular finding in relation to any circumstance is to be 14 regarded as necessary in deciding whether the persons have a 15 de facto relationship. 16 (4) A court determining whether a de facto relationship exists is 17 entitled to have regard to such matters, and to attach such weight to 18 any matter, as may seem appropriate to the court in the 19 circumstances of the case. 20 (5) For the purposes of this Act: 21 (a) a de facto relationship can exist between 2 persons of 22 different sexes and between 2 persons of the same sex; and 23 (b) a de facto relationship can exist even if one of the persons is 24 legally married to someone else or in another de facto 25 relationship. 26 When 2 persons are related by family 27 (6) For the purposes of subsection (1), 2 persons are related by family 28 if: 29 (a) one is the child (including an adopted child) of the other; or 30 (b) one is another descendant of the other (even if the 31 relationship between them is traced through an adoptive 32 parent); or 33 (c) they have a parent in common (who may be an adoptive 34 parent of either or both of them). 35 For this purpose, disregard whether an adoption is declared void or 36 has ceased to have effect. [Page Break] 2 Insert: 3 (1A) For the purposes of paragraph (eab) of the definition of 4 matrimonial cause in subsection 4(1), third party proceedings also 5 means proceedings between: 6 (a) any combination of: 7 (i) the parties to a financial agreement; and 8 (ii) the legal personal representatives of any of those parties 9 who have died; 10 (including a combination consisting solely of parties or 11 consisting solely of representatives); and 12 (b) either: 13 (i) another person who is a party to a de facto relationship 14 with one of the spouse parties to the financial 15 agreement; or 16 (ii) the legal personal representative of that other person if 17 that person has died; 18 being proceedings for the setting aside of the financial agreement 19 on the ground specified in paragraph 90K(1)(ab). 20 23 After section 4A 21 Insert: 22 4B Third party proceedings to set aside Part VIIIAB financial 23 agreement 24 (1) For the purposes of paragraph (f) of the definition of de facto 25 financial cause in subsection 4(1), third party proceedings means 26 proceedings between: 27 (a) any combination of: 28 (i) the parties to a Part VIIIAB financial agreement; and 29 (ii) the legal personal representatives of any of those parties 30 who have died; 31 (including a combination consisting solely of parties or 32 consisting solely of representatives); and 33 (b) any of the following: 34 (i) a creditor; [Page Break] 2 personal representative of the creditor; 3 (iii) a government body acting in the interests of a creditor; 4 being proceedings for the setting aside of the Part VIIIAB financial 5 agreement on the ground specified in paragraph 90UM(1)(b). 6 (2) For the purposes of paragraph (f) of the definition of de facto 7 financial cause in subsection 4(1), third party proceedings also 8 means proceedings between: 9 (a) any combination of: 10 (i) the parties to a Part VIIIAB financial agreement; and 11 (ii) the legal personal representatives of any of those parties 12 who have died; 13 (including a combination consisting solely of parties or 14 consisting solely of representatives); and 15 (b) either: 16 (i) another person who is a party to a de facto relationship 17 with one of the spouse parties to the Part VIIIAB 18 financial agreement; or 19 (ii) the legal personal representative of that other person if 20 that person has died; 21 being proceedings for the setting aside of the Part VIIIAB financial 22 agreement on the ground specified in paragraph 90UM(1)(c). 23 (3) For the purposes of paragraph (f) of the definition of de facto 24 financial cause in subsection 4(1), third party proceedings also 25 means proceedings between: 26 (a) any combination of: 27 (i) the parties to a Part VIIIAB financial agreement; and 28 (ii) the legal personal representatives of any of those parties 29 who have died; 30 (including a combination consisting solely of parties or 31 consisting solely of representatives); and 32 (b) either: 33 (i) another person who is a party to a marriage with one of 34 the spouse parties to the Part VIIIAB financial 35 agreement; or 36 (ii) the legal personal representative of that other person if 37 that person has died; [Page Break] 2 agreement on the ground specified in paragraph 90UM(1)(d). 3 (4) In this section: 4 creditor means: 5 (a) a creditor of a party to the Part VIIIAB financial agreement; 6 or 7 (b) a person who, at the commencement of the proceedings, 8 could reasonably have been foreseen by the court as being 9 reasonably likely to become a creditor of a party to the 10 Part VIIIAB financial agreement. 11 government body means: 12 (a) the Commonwealth, a State or a Territory; or 13 (b) an official or authority of the Commonwealth, a State or a 14 Territory. 15 24 Paragraph 10L(2)(a) 16 After "Part VIII proceedings", insert ", or Part VIIIAB proceedings 17 (other than proceedings relating to a Part VIIIAB financial 18 agreement),". 19 25 Subparagraph 10L(2)(b)(i) 20 After "Part VIIIA proceedings,", insert "Part VIIIAB proceedings,". 21 26 Subsection 13E(1) 22 Omit all the words after "exercising", substitute: 23 jurisdiction in: 24 (a) Part VIII proceedings; or 25 (b) Part VIIIAB proceedings (other than proceedings relating to 26 a Part VIIIAB financial agreement); 27 may make an order referring the proceedings, or any part of them, 28 or any matter arising in them, to an arbitrator for arbitration. 29 Note: The heading to section 13E is altered by inserting "or Part VIIIAB proceedings" after 30 "Part VIII proceedings". 31 27 At the end of paragraph 31(1)(a) 32 Add "and". [Page Break] 2 Insert: 3 (aa) matters arising under this Act in respect of which de facto 4 financial causes are instituted under this Act; and 5 29 At the end of paragraph 31(1)(b) 6 Add "and". 7 30 Subparagraph 37A(1)(f)(i) 8 Omit "or 77", substitute ", 77 or 90SG". 9 31 Part V (heading) 10 Repeal the heading, substitute: 11 Part V--Jurisdiction of courts 12 32 Before section 39 13 Insert: 14 Division 1--Jurisdiction in matrimonial causes 15 33 After section 39 16 Insert: 17 Division 2--Jurisdiction in de facto financial causes 18 39A Instituting proceedings 19 Instituting proceedings under this Act 20 (1) A de facto financial cause may be instituted under this Act in: 21 (a) the Family Court; or 22 (b) the Federal Magistrates Court; or 23 (c) the Supreme Court of the Northern Territory of Australia; or 24 (d) a court of summary jurisdiction of a participating jurisdiction. 25 (2) However: 26 (a) in the case of proceedings between the parties to the de facto 27 relationship--either of those parties; or [Page Break] 2 proceedings; 3 must be an Australian citizen, ordinarily resident in Australia or 4 present in Australia on the following day: 5 (c) if the application instituting the proceedings is filed in a 6 court--the day on which the application is so filed; 7 (d) in any other case--the day on which the application 8 instituting the proceedings is made. 9 (3) Subsection (2) does not apply in relation to proceedings referred to 10 in paragraph (g) of the definition of de facto financial cause in 11 subsection 4(1). 12 (4) Subsection (1) has effect subject to this Part. 13 Proceedings only to be instituted under this Act 14 (5) A de facto financial cause that may be instituted under this Act 15 must not, after the commencement of this section, be instituted 16 otherwise than under this Act. 17 (6) Subsection (5) has effect subject to subsection 90RC(5). 18 39B Jurisdiction in de facto financial causes 19 (1) Jurisdiction is conferred on: 20 (a) the Family Court; and 21 (b) the Federal Magistrates Court; and 22 (c) the Supreme Court of the Northern Territory of Australia; 23 and 24 (d) each court of summary jurisdiction of each Territory; 25 with respect to matters arising under this Act in respect of which 26 de facto financial causes are instituted under this Act. 27 Note 1: The exercise of this jurisdiction by the Family Court is subject to 28 section 40. 29 Note 2: The exercise of this jurisdiction by the Federal Magistrates Court is 30 subject to section 40A. 31 Note 3: The exercise of this jurisdiction by a Territory court is subject to 32 sections 39C, 39D, 39E and 39F. 33 (2) Each court of summary jurisdiction of each referring State is 34 invested with federal jurisdiction with respect to matters arising [Page Break] 2 instituted under this Act. 3 Note: The exercise of this jurisdiction by a State court is subject to 4 sections 39D and 39E. 5 (3) This section has effect subject to this Part. 6 39C Ceasing jurisdiction of Supreme Court of the Northern 7 Territory of Australia 8 (1) The Governor-General may, by Proclamation, fix a day as the day 9 on and after which a de facto financial cause: 10 (a) may not be instituted in, or transferred to, the Supreme Court 11 of the Northern Territory of Australia; or 12 (b) may be so instituted or transferred only where specified 13 conditions are complied with. 14 (2) Without limiting the generality of subsection (1), a Proclamation 15 under that subsection may be expressed to apply only in relation to 16 one or more of the following: 17 (a) proceedings of specified classes; 18 (b) the institution of proceedings in, or the transfer of 19 proceedings to, the Supreme Court of the Northern Territory 20 of Australia. 21 (3) The Supreme Court of the Northern Territory of Australia must not 22 hear and determine de facto financial causes otherwise than in 23 accordance with any Proclamation in force under subsection (1). 24 39D Ceasing jurisdiction of State or Territory courts of summary 25 jurisdiction 26 (1) The Governor-General may, by Proclamation, fix a day as the day 27 on and after which a de facto financial cause may not be instituted 28 in, or transferred to, a court of summary jurisdiction in a specified 29 participating jurisdiction. 30 (2) Without limiting the generality of subsection (1), a Proclamation 31 under that subsection may be expressed to apply only in relation to 32 one or more of the following: 33 (a) proceedings of specified classes; [Page Break] 2 proceedings to, a court of summary jurisdiction in a specified 3 part of a participating jurisdiction; 4 (c) the institution of proceedings in, or the transfer of 5 proceedings to, a court of summary jurisdiction constituted in 6 a specified way. 7 (3) A court of summary jurisdiction must not hear and determine 8 de facto financial causes otherwise than in accordance with any 9 Proclamation in force under subsection (1). 10 39E Revoking Proclamations ceasing jurisdiction of State or 11 Territory courts 12 (1) The Governor-General may, by Proclamation, declare that a 13 Proclamation under section 39C or 39D is revoked on and from a 14 specified day. 15 (2) If, under subsection (1), the Governor-General declares that a 16 Proclamation under section 39C or 39D is revoked: 17 (a) this Part (including sections 39C and 39D) has effect as if the 18 revoked Proclamation had not been made; but 19 (b) the effect of the revoked Proclamation on the jurisdiction of 20 courts before the specified day is not affected. 21 39F Territory court does not have jurisdiction unless a party is 22 ordinarily resident in the Territory 23 A court of a Territory must not hear or determine a de facto 24 financial cause unless at least one of the parties to the proceedings 25 is ordinarily resident in the Territory when the proceedings are 26 instituted or are transferred to the court. 27 39G Jurisdiction in relation to transferred matters under other 28 Commonwealth laws 29 If proceedings in relation to a matter arising under a law of the 30 Commonwealth are transferred under this Act to a court that has 31 jurisdiction conferred on or invested in it by this Division, the 32 jurisdiction so conferred on or invested in the court includes 33 jurisdiction in relation to that matter. [Page Break] 2 34 Section 43 3 Before "The", insert "(1)". 4 35 At the end of section 43 5 Add: 6 (2) Paragraph (1)(a) does not apply in relation to the exercise of 7 jurisdiction conferred or invested by Division 2. 8 36 At the end of section 44 9 Add: 10 (5) Subject to subsection (6), a party to a de facto relationship may 11 apply for: 12 (a) an order under section 90SE, 90SG or 90SM; or 13 (b) a declaration under section 90SL; 14 only if the application is made within the period of 2 years after the 15 end of the de facto relationship (the standard application period). 16 (6) The court may grant the party leave to apply after the end of the 17 standard application period if the court is satisfied that: 18 (a) hardship would be caused to the party or a child if leave were 19 not granted; or 20 (b) in the case of an application for an order for the maintenance 21 of the party--the party's circumstances were, at the end the 22 standard application period, such that he or she would have 23 been unable to support himself or herself without an income 24 tested pension, allowance or benefit. 25 37 Subsection 45(1A) 26 After "proceedings" (second occurring), insert "under this Act". 27 38 After subsection 45(1A) 28 Insert: 29 (1B) For the purposes of subsection (1): 30 (a) a de facto financial cause instituted in relation to a de facto 31 relationship; and [Page Break] 2 trustee of one of the parties to the de facto relationship, under 3 section 139A of the Bankruptcy Act 1966 for an order under 4 Division 4A of Part VI of that Act; 5 are taken to be proceedings under this Act in relation to the same 6 matter. 7 (1C) For the purposes of subsection (1), the first proceedings set out in 8 each item of following table, and the second proceedings set out in 9 that item, are taken to relate to the same matter if one of the parties 10 to each marriage, void marriage or de facto relationship referred to 11 in that item is the same. 12 Proceedings relating to the same matter Item First proceedings Second proceedings 1 a matrimonial cause instituted in a de facto financial cause instituted relation to a marriage (or void in relation to a de facto relationship marriage) 2 a de facto financial cause instituted a de facto financial cause instituted in relation to a de facto relationship in relation to a de facto relationship 13 39 Subsection 69ZM(3) 14 Repeal the subsection, substitute: 15 (3) This Division also applies to other proceedings between the parties 16 that involve the court exercising jurisdiction under this Act if: 17 (a) the proceedings: 18 (i) arise from the breakdown of the parties' marital 19 relationship; or 20 (ii) are a de facto financial cause; and 21 (b) the parties to the proceedings consent. 22 40 At the end of paragraphs 75(2)(a), (b), (c), (d), (e), (f), (g), 23 (h), (j), (k), (l), (m) and (n) 24 Add "and". 25 41 After paragraph 75(2)(n) 26 Insert: [Page Break] 2 made, under Part VIIIAB in relation to: 3 (i) a party to the marriage; or 4 (ii) a person who is a party to a de facto relationship with a 5 party to the marriage; or 6 (iii) the property of a person covered by subparagraph (i) 7 and of a person covered by subparagraph (ii), or of 8 either of them; or 9 (iv) vested bankruptcy property in relation to a person 10 covered by subparagraph (i) or (ii); and 11 42 Paragraph 75(2)(p) 12 After "parties", insert "to the marriage". 13 43 At the end of subsection 75(2) 14 Add: 15 ; and (q) the terms of any Part VIIIAB financial agreement that is 16 binding on a party to the marriage. 17 44 Subsection 79(10) 18 After "this section", insert "by a party to a marriage (the subject 19 marriage)". 20 45 After paragraph 79(10)(a) 21 Insert: 22 (aa) a person: 23 (i) who is a party to a de facto relationship with a party to 24 the subject marriage; and 25 (ii) who could apply, or has an application pending, for an 26 order under section 90SM, or a declaration under 27 section 90SL, in relation to the de facto relationship; 28 (ab) a person who is a party to a binding Part VIIIAB financial 29 agreement with a party to the subject marriage; 30 46 After subsection 79(10A) 31 Insert: [Page Break] 2 because of paragraph (10)(aa), the person may, in the proceedings, 3 apply for: 4 (a) an order under section 90SM; or 5 (b) a declaration under section 90SL; 6 in relation to the de facto relationship described in that paragraph. 7 47 At the end of section 79F 8 Add: 9 Note: The applicable Rules of Court may, for example, require notice to be 10 given to persons referred to in subsection 79(10) whose interests could 11 be affected by proceedings for an order under section 79. 12 48 Subparagraph 83(2)(a)(i) 13 After "changed", insert "(including the person entering into a stable and 14 continuing de facto relationship)". 15 49 After paragraph 90K(1)(aa) 16 Insert: 17 (ab) a party (the agreement party) to the agreement entered into 18 the agreement: 19 (i) for the purpose, or for purposes that included the 20 purpose, of defrauding another person who is a party to 21 a de facto relationship with a spouse party; or 22 (ii) for the purpose, or for purposes that included the 23 purpose, of defeating the interests of that other person in 24 relation to any possible or pending application for an 25 order under section 90SM, or a declaration under 26 section 90SL, in relation to the de facto relationship; or 27 (iii) with reckless disregard of those interests of that other 28 person; or 29 50 After Part VIIIA 30 Insert: [Page Break] 2 de facto relationships 3 Division 1--Preliminary 4 Subdivision A--Meaning of key terms 5 90RA Participating jurisdictions 6 Participating jurisdictions 7 (1) For the purposes of this Act, the following are the participating 8 jurisdictions: 9 (a) each referring State; 10 (b) each Territory. 11 Referring States 12 (2) A State is a referring State if: 13 (a) the Parliament of the State has referred, or refers, to the 14 Parliament of the Commonwealth financial matters relating 15 to the parties to de facto relationships arising out of the 16 breakdown of those de facto relationships; and 17 (b) the referral of the financial matters is made: 18 (i) for the purposes of paragraph 51(xxxvii) of the 19 Constitution; and 20 (ii) to the extent that the financial matters are not otherwise 21 included in the legislative powers of the Parliament of 22 the Commonwealth (otherwise than by a reference 23 under paragraph 51(xxxvii) of the Constitution). 24 This subsection has effect subject to subsection (5). 25 (3) To avoid doubt, a State is not a referring State if its Parliament has 26 referred, or refers, to the Parliament of the Commonwealth only a 27 limited class of the matters referred to in paragraph (2)(a). 28 (4) A State is a referring State even if a law of the State provides that 29 a reference to the Commonwealth Parliament described in 30 subsection (2) is to terminate in particular circumstances. [Page Break] 2 Commonwealth Parliament described in subsection (2) terminates. 3 90RB Meaning of child of a de facto relationship 4 (1) For the purposes of this Part, any of the following is a child of a 5 de facto relationship: 6 (a) a child of whom each of the parties to the de facto 7 relationship are the parents; 8 (b) a child adopted by the parties to the de facto relationship or 9 by either of them with the consent of the other; 10 (c) a child who under subsection 60H(1) is a child of the parties 11 to the de facto relationship. 12 This subsection has effect subject to subsection (2). 13 Note: Subsection 60H(1) is given an extended application by subsection 14 60H(4) and subsection (3) of this section. 15 (2) A child of a de facto relationship who is adopted by a person who, 16 before the adoption, is not a prescribed adopting parent ceases to 17 be a child of that de facto relationship for the purposes of this Part. 18 (3) For the purposes of this section, subsection 60H(1) applies to 19 parties to a de facto relationship who are of the same sex in a 20 corresponding way to the way in which it applies to parties to a 21 de facto relationship who are of different sexes. 22 Subdivision B--Relationship with State and Territory laws 23 90RC Relationship with State and Territory laws 24 De facto financial provisions 25 (1) In this section: 26 de facto financial provisions means the following provisions: 27 (a) this Part; 28 (b) Part VIIIAA (as applied by section 90TA); 29 (c) Part VIIIB, to the extent to which it relates to a 30 superannuation interest to be allocated between the parties to 31 a de facto relationship. [Page Break] 2 (2) Parliament intends that the de facto financial provisions are to 3 apply to the exclusion of any law of a State or Territory to the 4 extent that the law: 5 (a) deals with financial matters relating to the parties to de facto 6 relationships arising out of the breakdown of those de facto 7 relationships; and 8 (b) deals with those matters by referring expressly to de facto 9 relationships (regardless of how the State or Territory law 10 describes those relationships). 11 Note 1: If, for example, both this Part and a law of a non-referring State deal 12 with the distribution of property between the parties to a de facto 13 relationship that has broken down after the commencement of this 14 section, then the parties can only seek to distribute the property under 15 this Part. Subsection (2) has the effect of preventing the parties from 16 seeking to distribute the property under the State law. 17 Note 2: For de facto relationship, see section 4AA. 18 Exception--insufficient link to a participating jurisdiction or 19 Division 2 not applicable because of section 90SB 20 (3) Despite subsection (2), Parliament does not intend that the de facto 21 financial provisions are to apply to the exclusion of a law of a State 22 in relation to a financial matter relating to the parties to a de facto 23 relationship arising out of the breakdown of the relationship if: 24 (a) a court cannot make an order under this Part in relation to 25 that financial matter because of section 90SB, 90SD or 26 90SK; and 27 (b) there is no binding Part VIIIAB financial agreement dealing 28 with that financial matter. 29 Example 1: Abbey and Bob are parties to a de facto relationship that has broken 30 down, and have never been ordinarily resident in a participating 31 jurisdiction. Subsection (3) has the effect that State law will govern 32 financial matters arising out of the breakdown of their relationship. 33 Example 2: Cleo and Dan are parties to a de facto relationship that has broken 34 down after the commencement of this section. Early in their 35 relationship, they made a financial agreement under the law of a 36 non-referring State, but later spent most of their relationship in a 37 participating jurisdiction. Cleo and Dan now have a sufficient 38 geographical link with a participating jurisdiction for either of them to 39 apply for an order under this Part in relation to financial matters 40 arising out of the breakdown of their relationship. This means that 41 subsection (3) will not apply and that their financial agreement will 42 not be enforceable under State law because of subsection (2). [Page Break] 2 as a Part VIIIAB financial agreement (see section 90UE). 3 Exception--laws facilitating this Act 4 (4) Despite subsection (2), Parliament does not intend that the de facto 5 financial provisions are to apply to the exclusion of a law of a State 6 or Territory to the extent that the law facilitates the operation of 7 this Act. 8 Note: This Part is not intended to apply to the exclusion of, for example, a 9 State law that deals with superannuation entitlements by 10 acknowledging superannuation splitting under Part VIIIB of this Act. 11 Exception--prescribed State or Territory laws 12 (5) Despite subsection (2), Parliament does not intend that the de facto 13 financial provisions are to apply to the exclusion of a law of a State 14 or Territory if the law is prescribed in regulations made for the 15 purposes of this subsection. 16 Subdivision C--Declarations about existence of de facto 17 relationships 18 90RD Declarations about existence of de facto relationships 19 (1) If: 20 (a) an application is made for an order under section 90SE, 90SG 21 or 90SM, or a declaration under section 90SL; and 22 (b) a claim is made, in support of the application, that a de facto 23 relationship existed between the applicant and another 24 person; 25 the court may, for the purposes of those proceedings (the primary 26 proceedings), declare that a de facto relationship existed, or never 27 existed, between those 2 persons. 28 (2) A declaration under subsection (1) of the existence of a de facto 29 relationship may also declare any or all of the following: 30 (a) the period, or periods, of the de facto relationship for the 31 purposes of paragraph 90SB(a); 32 (b) whether there is a child of the de facto relationship; [Page Break] 2 substantial contributions of a kind mentioned in paragraph 3 90SM(4)(a), (b) or (c); 4 (d) when the de facto relationship ended; 5 (e) where each of the parties to the de facto relationship was 6 ordinarily resident during the de facto relationship. 7 Note: For child of a de facto relationship, see section 90RB. 8 90RE Effect of declarations 9 (1) A section 90RD declaration has effect as a judgment of the court. 10 (2) For the purposes of this Act (other than Part VII), a section 90RD 11 declaration has effect according to its terms. 12 90RF Applying for declarations 13 Any party to the primary proceedings may apply for a 14 section 90RD declaration. 15 90RG Geographical requirement 16 A court may make a section 90RD declaration only if the court is 17 satisfied that a person referred to in paragraph 90RD(1)(b), or both 18 of those persons, were ordinarily resident in a participating 19 jurisdiction when the primary proceedings commenced. 20 90RH Setting aside declarations 21 (1) If, in the primary proceedings, a person (the affected person) 22 affected by a section 90RD declaration made in those proceedings 23 applies under this subsection, and the court is satisfied that: 24 (a) a fact or circumstance has arisen that has not previously been 25 disclosed to the court; and 26 (b) if the affected person was a party to the primary proceedings 27 at the time the application for the declaration was made--the 28 fact or circumstance was not within the affected person's 29 knowledge at that time; 30 the court may do any of the following: 31 (c) vary the declaration; 32 (d) set the declaration aside; [Page Break] 2 declaration in substitution for the declaration so set aside. 3 (2) The setting aside of a declaration does not affect anything done in 4 reliance on the declaration while it remained in force. 5 (3) If the court sets aside a section 90RD declaration, the court may, 6 on application by the affected person or any other interested 7 person, make such order or orders (including an order for the 8 transfer of property) as it considers just and equitable for the 9 purpose of placing as far as practicable any person affected by the 10 setting aside of the declaration in the same position as that person 11 would have been in if the declaration had not been made. 12 Division 2--Maintenance, declarations of property 13 interests and alterations of property interests 14 Subdivision A--Application of Division 15 90SA This Division does not apply to certain matters covered by 16 binding financial agreements 17 (1) This Division does not apply to any of the following matters to 18 which a binding Part VIIIAB financial agreement applies: 19 (a) the maintenance of one of the spouse parties; 20 (b) the property of the spouse parties or of either of them; 21 (c) the financial resources of the spouse parties or of either of 22 them. 23 (2) Subsection (1) does not apply in relation to: 24 (a) proceedings between: 25 (i) a party to a de facto relationship; and 26 (ii) the bankruptcy trustee of a bankrupt party to the 27 de facto relationship; 28 with respect to the maintenance of the first-mentioned party 29 after the breakdown of the de facto relationship; or 30 (b) proceedings between: 31 (i) a party to a de facto relationship; and 32 (ii) the bankruptcy trustee of a bankrupt party to the 33 de facto relationship; [Page Break] 2 de facto relationship, of any vested bankruptcy property in 3 relation to the bankrupt party. 4 (3) Despite subsection (1), a party to a de facto relationship is not 5 prevented from bringing property settlement proceedings under this 6 Part if a Part VIIIAB financial agreement is not binding on that 7 party. 8 Example: Before Amy and Ben's de facto relationship breaks down, Ben and 9 Cathy make a Part VIIIAB financial agreement. Ben and Cathy's 10 Part VIIIAB financial agreement does not prevent Amy from bringing 11 property settlement proceedings against Ben. 12 90SB When this Division applies--length of relationship etc. 13 A court may make an order under section 90SE, 90SG or 90SM, or 14 a declaration under section 90SL, in relation to a de facto 15 relationship only if the court is satisfied: 16 (a) that the period, or the total of the periods, of the de facto 17 relationship is at least 2 years; or 18 (b) that there is a child of the de facto relationship; or 19 (c) that: 20 (i) the party to the de facto relationship who applies for the 21 order or declaration made substantial contributions of a 22 kind mentioned in paragraph 90SM(4)(a), (b) or (c); and 23 (ii) a failure to make the order or declaration would result in 24 serious injustice to the applicant; or 25 (d) that the relationship is or was registered under a prescribed 26 law of a State or Territory. 27 Note: For child of a de facto relationship, see section 90RB. 28 90SC This Division ceases to apply in relation to a de facto 29 relationship if the parties marry each other 30 (1) This Division (other than subsections 90SJ(2) to (5)) ceases to 31 apply in relation to a de facto relationship if the parties to the 32 de facto relationship later marry each other. 33 (2) Despite subsection (1), a declaration, order or injunction: 34 (a) made in property settlement proceedings under this Division 35 in relation to the de facto relationship; and [Page Break] 2 may, after the marriage, be enforced, varied or set aside in 3 accordance with this Act. 4 (3) If a declaration, order or injunction is set aside as described in 5 subsection (2), another declaration, order or injunction may be 6 made under this Division in substitution for that declaration, order 7 or injunction. 8 Subdivision B--Maintenance 9 90SD Geographical requirement 10 (1) A court may make an order under section 90SE or 90SG in relation 11 to a de facto relationship only if the court is satisfied: 12 (a) that either or both of the parties to the de facto relationship 13 were ordinarily resident in a participating jurisdiction when 14 the application for the order was made (the application time); 15 and 16 (b) that either: 17 (i) both parties to the de facto relationship were ordinarily 18 resident during at least a third of the de facto 19 relationship; or 20 (ii) the applicant for the order made substantial 21 contributions, in relation to the de facto relationship, of 22 a kind mentioned in paragraph 90SM(4)(a), (b) or (c); 23 in one or more States or Territories that are participating 24 jurisdictions at the application time. 25 (2) For the purposes of paragraph (1)(b), a State need not have been a 26 participating jurisdiction during the de facto relationship. 27 (3) If each State is a referring State, the Governor-General may, by 28 Proclamation, fix a day as the day on which paragraph (1)(b) 29 ceases to apply in relation to new applications. 30 Note: Paragraph (1)(b) will continue to apply in relation to applications 31 made before the proclaimed day. 32 (4) If: 33 (a) a Proclamation under subsection (3) is in force; and 34 (b) a State ceases to be a referring State on a particular day; [Page Break] 2 from that day. 3 (5) If, under subsection (4), a Proclamation under subsection (3) is 4 revoked: 5 (a) this section has effect as if the revoked Proclamation had not 6 been made; but 7 (b) the effect of the revoked Proclamation on applications made 8 before the specified day is not affected. 9 90SE Power of court in maintenance proceedings 10 (1) After the breakdown of a de facto relationship, a court may make 11 such order as it considers proper for the maintenance of one of the 12 parties to the de facto relationship in accordance with this Division. 13 Note 1: The geographical requirement in section 90SD must be satisfied. 14 Note 2: The court must be satisfied of at least one of the matters in 15 section 90SB. 16 (2) If: 17 (a) an application is made for an order under this section in 18 proceedings between the parties to a de facto relationship 19 with respect to the maintenance of a party to the de facto 20 relationship; and 21 (b) either of the following subparagraphs apply to a party to the 22 de facto relationship: 23 (i) when the application was made, the party was a 24 bankrupt; 25 (ii) after the application was made but before the 26 proceedings are finally determined, the party became a 27 bankrupt; and 28 (c) the bankruptcy trustee applies to the court to be joined as a 29 party to the proceedings; and 30 (d) the court is satisfied that the interests of the bankrupt's 31 creditors may be affected by the making of an order under 32 this section in the proceedings; 33 the court must join the bankruptcy trustee as a party to the 34 proceedings. 35 (3) If, under subsection (2), a bankruptcy trustee is a party to 36 proceedings with respect to the maintenance of a party to a de facto [Page Break] 2 party to the de facto relationship is not entitled to make a 3 submission to the court in connection with any vested bankruptcy 4 property in relation to the bankrupt party. 5 (4) The court must not grant leave under subsection (3) unless the 6 court is satisfied that there are exceptional circumstances. 7 (5) If: 8 (a) an application is made for an order under this section in 9 proceedings between the parties to a de facto relationship 10 with respect to the maintenance of a party to the de facto 11 relationship; and 12 (b) either of the following subparagraphs apply to a party to the 13 de facto relationship (the debtor party): 14 (i) when the application was made, the debtor party was a 15 debtor subject to a personal insolvency agreement; 16 (ii) after the application was made but before it is finally 17 determined, the debtor party becomes a debtor subject to 18 a personal insolvency agreement; and 19 (c) the trustee of the agreement applies to the court to be joined 20 as a party to the proceedings; and 21 (d) the court is satisfied that the interests of the debtor party's 22 creditors may be affected by the making of an order under 23 this section in the proceedings; 24 the court must join the trustee of the agreement as a party to the 25 proceedings. 26 (6) If, under subsection (5), the trustee of a personal insolvency 27 agreement is a party to proceedings with respect to the 28 maintenance of a party to a de facto relationship, then, except with 29 the leave of the court, the debtor party is not entitled to make a 30 submission to the court in connection with any property subject to 31 the agreement. 32 (7) The court must not grant leave under subsection (6) unless the 33 court is satisfied that there are exceptional circumstances. 34 (8) For the purposes of subsections (2) and (5), an application for an 35 order under this section is taken to be finally determined when: 36 (a) the application is withdrawn or dismissed; or [Page Break] 2 the application. 3 90SF Matters to be taken into consideration in relation to 4 maintenance 5 (1) In exercising jurisdiction under section 90SE (after being satisfied 6 of the matters in subsections 44(5) and (6) and sections 90SB and 7 90SD), the court must apply the principle that a party to a de facto 8 relationship must maintain the other party to the de facto 9 relationship: 10 (a) only to the extent that the first-mentioned party is reasonably 11 able to do so; and 12 (b) only if the second-mentioned party is unable to support 13 himself or herself adequately whether: 14 (i) by reason of having the care and control of a child of the 15 de facto relationship who has not attained the age of 18 16 years; or 17 (ii) by reason of age or physical or mental incapacity for 18 appropriate gainful employment; or 19 (iii) for any other adequate reason. 20 Note: For child of a de facto relationship, see section 90RB. 21 (2) In applying this principle, the court must take into account only the 22 matters referred to in subsection (3). 23 (3) The matters to be so taken into account are: 24 (a) the age and state of health of each of the parties to the 25 de facto relationship (the subject de facto relationship); and 26 (b) the income, property and financial resources of each of the 27 parties and the physical and mental capacity of each of them 28 for appropriate gainful employment; and 29 (c) whether either party has the care or control of a child of the 30 de facto relationship who has not attained the age of 18 years; 31 and 32 (d) commitments of each of the parties that are necessary to 33 enable the party to support: 34 (i) himself or herself; and 35 (ii) a child or another person that the party has a duty to 36 maintain; and [Page Break] 2 person; and 3 (f) subject to subsection (4), the eligibility of either party for a 4 pension, allowance or benefit under: 5 (i) any law of the Commonwealth, of a State or Territory or 6 of another country; or 7 (ii) any superannuation fund or scheme, whether the fund or 8 scheme was established, or operates, within or outside 9 Australia; 10 and the rate of any such pension, allowance or benefit being 11 paid to either party; and 12 (g) a standard of living that in all the circumstances is 13 reasonable; and 14 (h) the extent to which the payment of maintenance to the party 15 whose maintenance is under consideration would increase the 16 earning capacity of that party by enabling that party to 17 undertake a course of education or training or to establish 18 himself or herself in a business or otherwise to obtain an 19 adequate income; and 20 (i) the effect of any proposed order on the ability of a creditor of 21 a party to recover the creditor's debt, so far as that effect is 22 relevant; and 23 (j) the extent to which the party whose maintenance is under 24 consideration has contributed to the income, earning 25 capacity, property and financial resources of the other party; 26 and 27 (k) the duration of the de facto relationship and the extent to 28 which it has affected the earning capacity of the party whose 29 maintenance is under consideration; and 30 (l) the need to protect a party who wishes to continue that 31 party's role as a parent; and 32 (m) if either party is cohabiting with another person--the 33 financial circumstances relating to the cohabitation; and 34 (n) the terms of any order made or proposed to be made under 35 section 90SM in relation to: 36 (i) the property of the parties; or 37 (ii) vested bankruptcy property in relation to a bankrupt 38 party; and [Page Break] 2 made, under this Part in relation to: 3 (i) a party to the subject de facto relationship (in relation to 4 another de facto relationship); or 5 (ii) a person who is a party to another de facto relationship 6 with a party to the subject de facto relationship; or 7 (iii) the property of a person covered by subparagraph (i) 8 and of a person covered by subparagraph (ii), or of 9 either of them; or 10 (iv) vested bankruptcy property in relation to a person 11 covered by subparagraph (i) or (ii); and 12 (p) the terms of any order or declaration made, or proposed to be 13 made, under Part VIII in relation to: 14 (i) a party to the subject de facto relationship; or 15 (ii) a person who is a party to a marriage with a party to the 16 subject de facto relationship; or 17 (iii) the property of a person covered by subparagraph (i) 18 and of a person covered by subparagraph (ii), or of 19 either of them; or 20 (iv) vested bankruptcy property in relation to a person 21 covered by subparagraph (i) or (ii); and 22 (q) any child support under the Child Support (Assessment) Act 23 1989 that a party to the subject de facto relationship has 24 provided, is to provide, or might be liable to provide in the 25 future, for a child of the subject de facto relationship; and 26 (r) any fact or circumstance which, in the opinion of the court, 27 the justice of the case requires to be taken into account; and 28 (s) the terms of any Part VIIIAB financial agreement that is 29 binding on either or both of the parties to the subject de facto 30 relationship; and 31 (t) the terms of any financial agreement that is binding on a 32 party to the subject de facto relationship. 33 (4) In exercising its jurisdiction under section 90SE, a court must 34 disregard any entitlement of the party whose maintenance is under 35 consideration to an income tested pension, allowance or benefit. [Page Break] 2 If, in proceedings with respect to the maintenance of a party to a 3 de facto relationship in accordance with this Division, it appears to 4 the court that: 5 (a) the party is in immediate need of financial assistance; and 6 (b) it is not practicable in the circumstances to determine 7 immediately what order, if any, should be made; 8 the court may order the payment, pending the disposal of the 9 proceedings, of such periodic sum or other sums as the court 10 considers reasonable. 11 Note 1: The geographical requirement in section 90SD must be satisfied. 12 Note 2: The court must be satisfied of at least one of the matters in 13 section 90SB. 14 90SH Specification in orders of payments etc. for maintenance 15 purposes 16 (1) If: 17 (a) a court makes an order under this Act (whether or not the 18 order is made in proceedings in relation to the maintenance 19 of a party to a de facto relationship in accordance with this 20 Division, is made by consent or varies an earlier order), and 21 the order has the effect of requiring: 22 (i) payment of a lump sum, whether in one amount or by 23 instalments; or 24 (ii) the transfer or settlement of property; and 25 (b) the purpose, or one of the purposes, of the payment, transfer 26 or settlement is to make provision for the maintenance of a 27 party to a de facto relationship in relation to the breakdown 28 of the de facto relationship; 29 the court must: 30 (c) express the order to be an order to which this section applies; 31 and 32 (d) specify the portion of the payment, or the value of the portion 33 of the property, attributable to the maintenance of the party. 34 (2) If: 35 (a) a court makes an order of a kind referred to in 36 paragraph (1)(a); and [Page Break] 2 (i) is not expressed to be an order to which this section 3 applies; or 4 (ii) is expressed to be an order to which this section applies, 5 but does not comply with paragraph (1)(d); 6 any payment, transfer or settlement of a kind referred to in 7 paragraph (1)(a), that the order has the effect of requiring, must be 8 taken not to make provision for the maintenance of a party to the 9 relevant de facto relationship. 10 90SI Modification of maintenance orders 11 (1) If there is in force an order with respect to the maintenance of a 12 party to a de facto relationship in accordance with this Division: 13 (a) made by the court; or 14 (b) made by another court and registered in the first-mentioned 15 court in accordance with the applicable Rules of Court; 16 the court may: 17 (c) discharge the order if there is any just cause for so doing; or 18 (d) suspend its operation wholly or in part and either until further 19 order or until a fixed time or the happening of some future 20 event; or 21 (e) revive wholly or in part an order suspended under 22 paragraph (d); or 23 (f) subject to subsection (3), vary the order so as to increase or 24 decrease any amount ordered to be paid or in any other 25 manner. 26 (2) The court's jurisdiction under subsection (1) may be exercised: 27 (a) in any case--in proceedings with respect to the maintenance 28 of a party to the de facto relationship in accordance with this 29 Division; or 30 (b) if there is a bankrupt party to the de facto relationship--on 31 the application of the bankruptcy trustee; or 32 (c) if a party to the de facto relationship is a debtor subject to a 33 personal insolvency agreement--on the application of the 34 trustee of the agreement. 35 (3) The court must not make an order increasing or decreasing an 36 amount ordered to be paid by an order unless it is satisfied: [Page Break] 2 (i) the circumstances of a person for whose benefit the 3 order was made have so changed (including the person 4 entering into a stable and continuing de facto 5 relationship); or 6 (ii) the circumstances of the person liable to make payments 7 under the order have so changed; or 8 (iii) in the case of an order that operates in favour of, or is 9 binding on, a legal personal representative--the 10 circumstances of the estate are such; 11 as to justify its so doing; or 12 (b) that, since the order was made, or last varied, the cost of 13 living has changed to such an extent as to justify its so doing; 14 or 15 (c) in a case where the order was made by consent--that the 16 amount ordered to be paid is not proper or adequate; or 17 (d) that: 18 (i) material facts were withheld from the court that made 19 the order, or from a court that varied the order; or 20 (ii) material evidence previously given before such a court 21 was false. 22 (4) In satisfying itself for the purposes of paragraph (3)(b), the court 23 must have regard to any changes that have occurred in the 24 Consumer Price Index published by the Australian Statistician. 25 (5) The court must not, in considering the variation of an order, have 26 regard to a change in the cost of living unless at least 12 months 27 have elapsed since the order was made or was last varied having 28 regard to a change in the cost of living. 29 (6) In satisfying itself for the purposes of paragraph (3)(c), the court 30 must have regard to any payments, and any transfer or settlement 31 of property, previously made by a party to the de facto relationship, 32 or by the bankruptcy trustee of a party to the de facto relationship, 33 to: 34 (a) the other party; or 35 (b) any other person for the benefit of the other party. [Page Break] 2 an order or discharging an order may be expressed to be 3 retrospective to such date as the court considers appropriate. 4 (8) If, as provided by subsection (7), an order decreasing the amount of 5 a periodic sum payable under an order is expressed to be 6 retrospective to a specified date, any money paid under the 7 second-mentioned order since the specified date, being money that 8 would not have been required to be paid under the 9 second-mentioned order as varied by the first-mentioned order, 10 may be recovered in a court having jurisdiction under this Act. 11 (9) If, as provided by subsection (7), an order discharging an order is 12 expressed to be retrospective to a specified date, any money paid 13 under the second-mentioned order since the specified date may be 14 recovered in a court having jurisdiction under this Act. 15 (10) For the purposes of this section, the court must have regard to the 16 provisions of section 90SF. 17 (11) The discharge of an order does not affect the recovery of arrears 18 due under the order at the time as at which the discharge takes 19 effect. 20 90SJ Cessation of maintenance orders 21 (1) An order with respect to the maintenance of a party to a de facto 22 relationship in accordance with this Division ceases to have effect 23 upon: 24 (a) the death of the party; or 25 (b) the death of the person liable to make payments under the 26 order. 27 (2) An order with respect to the maintenance of a party to a de facto 28 relationship in accordance with this Division ceases to have effect 29 upon the marriage of the party unless in special circumstances a 30 court having jurisdiction under this Act otherwise orders. 31 (3) If a marriage referred to in subsection (2) takes place, it is the duty 32 of the person for whose benefit the order was made to inform 33 without delay the person liable to make payments under the order 34 of the date of the marriage. [Page Break] 2 subsection (2) may be recovered in a court having jurisdiction 3 under this Act. 4 (5) Nothing in this section affects the recovery of arrears due under an 5 order at the time when the order ceased to have effect. 6 Subdivision C--Declarations and alterations of property 7 interests 8 90SK Geographical requirement 9 (1) A court may make a declaration under section 90SL, or an order 10 under section 90SM, in relation to a de facto relationship only if 11 the court is satisfied: 12 (a) that either or both of parties to the de facto relationship were 13 ordinarily resident in a participating jurisdiction when the 14 application for the declaration or order was made (the 15 application time); and 16 (b) that either: 17 (i) both parties to the de facto relationship were ordinarily 18 resident during at least a third of the de facto 19 relationship; or 20 (ii) the applicant for the declaration or order made 21 substantial contributions in relation to the de facto 22 relationship, of a kind mentioned in paragraph 23 90SM(4)(a), (b) or (c); 24 in one or more States or Territories that are participating 25 jurisdictions at the application time. 26 (2) For the purposes of paragraph (1)(b), a State need not have been a 27 participating jurisdiction during the de facto relationship. 28 (3) If each State is a referring State, the Governor-General may, by 29 Proclamation, fix a day as the day on which paragraph (1)(b) 30 ceases to apply in relation to new applications. 31 Note: Paragraph (1)(b) will continue to apply in relation to applications 32 made before the proclaimed day. 33 (4) If: 34 (a) a Proclamation under subsection (3) is in force; and 35 (b) a State ceases to be a referring State on a particular day; [Page Break] 2 from that day. 3 (5) If, under subsection (4), a Proclamation under subsection (3) is 4 revoked: 5 (a) this section has effect as if the revoked Proclamation had not 6 been made; but 7 (b) the effect of the revoked Proclamation on applications made 8 before the specified day is not affected. 9 90SL Declaration of interests in property 10 (1) In proceedings between the parties to a de facto relationship: 11 (a) after the breakdown of the de facto relationship; and 12 (b) with respect to existing title or rights in respect of property; 13 the court may declare the title or rights, if any, that a party has in 14 respect of the property. 15 Note 1: The geographical requirement in section 90SK must be satisfied. 16 Note 2: The court must be satisfied of at least one of the matters in 17 section 90SB. 18 (2) If a court makes a declaration under subsection (1), it may make 19 consequential orders to give effect to the declaration, including 20 orders as to sale or partition and interim or permanent orders as to 21 possession. 22 90SM Alteration of property interests 23 (1) In property settlement proceedings after the breakdown of a 24 de facto relationship, the court may make such order as it considers 25 appropriate: 26 (a) in the case of proceedings with respect to the property of the 27 parties to the de facto relationship or either of them--altering 28 the interests of the parties to the de facto relationship in the 29 property; or 30 (b) in the case of proceedings with respect to the vested 31 bankruptcy property in relation to a bankrupt party to the 32 de facto relationship--altering the interests of the bankruptcy 33 trustee in the vested bankruptcy property; 34 including: [Page Break] 2 interest in the property; and 3 (d) an order requiring: 4 (i) either or both of the parties to the de facto relationship; 5 or 6 (ii) the relevant bankruptcy trustee (if any); 7 to make, for the benefit of either or both of the parties to the 8 de facto relationship or a child of the de facto relationship, 9 such settlement or transfer of property as the court 10 determines. 11 Note 1: The geographical requirement in section 90SK must be satisfied. 12 Note 2: The court must be satisfied of at least one of the matters in 13 section 90SB. 14 Note 3: For child of a de facto relationship, see section 90RB. 15 (2) If a party to the de facto relationship dies after the breakdown of 16 the de facto relationship, an order made under subsection (1) in 17 property settlement proceedings may be enforced on behalf of, or 18 against, as the case may be, the estate of the deceased party. 19 (3) The court must not make an order under this section unless it is 20 satisfied that, in all the circumstances, it is just and equitable to 21 make the order. 22 (4) In considering what order (if any) should be made under this 23 section in property settlement proceedings, the court must take into 24 account: 25 (a) the financial contribution made directly or indirectly by or on 26 behalf of a party to the de facto relationship, or a child of the 27 de facto relationship: 28 (i) to the acquisition, conservation or improvement of any 29 of the property of the parties to the de facto relationship 30 or either of them; or 31 (ii) otherwise in relation to any of that last-mentioned 32 property; 33 whether or not that last-mentioned property has, since the 34 making of the contribution, ceased to be the property of the 35 parties to the de facto relationship or either of them; and 36 (b) the contribution (other than a financial contribution) made 37 directly or indirectly by or on behalf of a party to the de facto 38 relationship, or a child of the de facto relationship: [Page Break] 2 of the property of the parties to the de facto relationship 3 or either of them; or 4 (ii) otherwise in relation to any of that last-mentioned 5 property; 6 whether or not that last-mentioned property has, since the 7 making of the contribution, ceased to be the property of the 8 parties to the de facto relationship or either of them; and 9 (c) the contribution made by a party to the de facto relationship 10 to the welfare of the family constituted by the parties to the 11 de facto relationship and any children of the de facto 12 relationship, including any contribution made in the capacity 13 of homemaker or parent; and 14 (d) the effect of any proposed order upon the earning capacity of 15 either party to the de facto relationship; and 16 (e) the matters referred to in subsection 90SF(3) so far as they 17 are relevant; and 18 (f) any other order made under this Act affecting a party to the 19 de facto relationship or a child of the de facto relationship; 20 and 21 (g) any child support under the Child Support (Assessment) Act 22 1989 that a party to the de facto relationship has provided, is 23 to provide, or might be liable to provide in the future, for a 24 child of the de facto relationship. 25 (5) Without limiting the power of any court to grant an adjournment in 26 proceedings under this Act, if, in property settlement proceedings 27 in relation to the parties to a de facto relationship, a court is of the 28 opinion: 29 (a) that there is likely to be a significant change in the financial 30 circumstances of the parties to the de facto relationship or 31 either of them and that, having regard to the time when that 32 change is likely to take place, it is reasonable to adjourn the 33 proceedings; and 34 (b) that an order that the court could make with respect to: 35 (i) the property of the parties to the de facto relationship or 36 either of them; or 37 (ii) the vested bankruptcy property in relation to a bankrupt 38 de facto party to the de facto relationship; [Page Break] 2 more likely to do justice as between the parties to the de facto 3 relationship than an order that the court could make 4 immediately with respect to: 5 (iii) the property of the parties to the de facto relationship or 6 either of them; or 7 (iv) the vested bankruptcy property in relation to a bankrupt 8 party to the de facto relationship; 9 the court may, if so requested by either party to the de facto 10 relationship or the relevant bankruptcy trustee (if any), adjourn the 11 proceedings until such time, before the expiration of a period 12 specified by the court, as that party to the de facto relationship or 13 the relevant bankruptcy trustee, as the case may be, applies for the 14 proceedings to be determined, but nothing in this subsection 15 requires the court to adjourn any proceedings in any particular 16 circumstances. 17 (6) If a court proposes to adjourn proceedings as provided by 18 subsection (5), the court may, before so adjourning the 19 proceedings, make such interim order or orders or such other order 20 or orders (if any) as it considers appropriate with respect to: 21 (a) any of the property of the parties to the de facto relationship 22 or of either of them; or 23 (b) any of the vested bankruptcy property in relation to a 24 bankrupt party to the de facto relationship. 25 (7) The court may, in forming an opinion for the purposes of 26 subsection (5) as to whether there is likely to be a significant 27 change in the financial circumstances of either or both of the 28 parties to the de facto relationship, have regard to any change in the 29 financial circumstances of a party to the de facto relationship that 30 may occur by reason that the party to the de facto relationship: 31 (a) is a contributor to a superannuation fund or scheme, or 32 participates in any scheme or arrangement that is in the 33 nature of a superannuation scheme; or 34 (b) may become entitled to property as the result of the exercise 35 in his or her favour, by the trustee of a discretionary trust, of 36 a power to distribute trust property; 37 but nothing in this subsection limits the circumstances in which the 38 court may form the opinion that there is likely to be a significant [Page Break] 2 relationship. 3 (8) If a party to the de facto relationship dies after the breakdown of 4 the de facto relationship, but before property settlement 5 proceedings are completed: 6 (a) the proceedings may be continued by or against, as the case 7 may be, the legal personal representative of the deceased 8 party and the applicable Rules of Court may make provision 9 in relation to the substitution of the legal personal 10 representative as a party to the proceedings; and 11 (b) if the court is of the opinion: 12 (i) that it would have made an order with respect to 13 property if the deceased party had not died; and 14 (ii) that it is still appropriate to make an order with respect 15 to property; 16 the court may make such order as it considers appropriate 17 with respect to: 18 (iii) any of the property of the parties to the de facto 19 relationship or either of them; or 20 (iv) any of the vested bankruptcy property in relation to a 21 bankrupt de facto party to the de facto relationship; and 22 (c) an order made by the court pursuant to paragraph (b) may be 23 enforced on behalf of, or against, as the case may be, the 24 estate of the deceased party. 25 (9) The Family Court must not make an order under this section in 26 property settlement proceedings (other than an order until further 27 order or an order made with the consent of all the parties to the 28 proceedings) unless: 29 (a) the parties to the proceedings have attended a conference in 30 relation to the matter to which the proceedings relate with a 31 Registrar or Deputy Registrar of the Family Court; or 32 (b) the court is satisfied that, having regard to the need to make 33 an order urgently, or to any other special circumstance, it is 34 appropriate to make the order notwithstanding that the parties 35 to the proceedings have not attended a conference as 36 mentioned in paragraph (a); or 37 (c) the court is satisfied that it is not practicable to require the 38 parties to the proceedings to attend a conference as 39 mentioned in paragraph (a). [Page Break] 2 which an application is made for an order under this section by a 3 party to a de facto relationship (the subject de facto relationship): 4 (a) a creditor of a party to the proceedings if the creditor may not 5 be able to recover his or her debt if the order were made; 6 (b) a person: 7 (i) who is a party to a de facto relationship (the other 8 de facto relationship) with a party to the subject 9 de facto relationship; and 10 (ii) who could apply, or has an application pending, for an 11 order under section 90SM, or a declaration under 12 section 90SL, in relation to the other de facto 13 relationship; 14 (c) a person who is a party to a binding Part VIIIAB financial 15 agreement with a party to the subject de facto relationship; 16 (d) a person: 17 (i) who is a party to a marriage with a party to the subject 18 de facto relationship; and 19 (ii) who could apply, or has an application pending, for an 20 order under section 79, or a declaration under 21 section 78, in relation to the marriage (or void 22 marriage); 23 (e) a person who is a party to a binding financial agreement with 24 a party to the subject de facto relationship; 25 (f) any other person whose interests would be affected by the 26 making of the order. 27 (11) Subsection (10) does not apply to a creditor of a party to the 28 proceedings: 29 (a) if the party is a bankrupt--to the extent to which the debt is a 30 provable debt (within the meaning of the Bankruptcy Act 31 1966); or 32 (b) if the party is a debtor subject to a personal insolvency 33 agreement--to the extent to which the debt is covered by the 34 personal insolvency agreement. 35 (12) If a person becomes a party to proceedings under this section 36 because of paragraph (10)(b), the person may, in the proceedings, 37 apply for: 38 (a) an order under section 90SM; or [Page Break] 2 in relation to the other de facto relationship described in that 3 paragraph. 4 (13) If a person becomes a party to proceedings under this section 5 because of paragraph (10)(d), the person may, in the proceedings, 6 apply for: 7 (a) an order under section 79; or 8 (b) a declaration under section 78; 9 in relation to the marriage (or void marriage) described in that 10 paragraph. 11 (14) If: 12 (a) an application is made for an order under this section in 13 proceedings between the parties to a de facto relationship 14 with respect to the property of the parties to the de facto 15 relationship or either of them; and 16 (b) either of the following subparagraphs apply to a party to the 17 de facto relationship: 18 (i) when the application was made, the party was a 19 bankrupt; 20 (ii) after the application was made but before it is finally 21 determined, the party became a bankrupt; and 22 (c) the bankruptcy trustee applies to the court to be joined as a 23 party to the proceedings; and 24 (d) the court is satisfied that the interests of the bankrupt's 25 creditors may be affected by the making of an order under 26 this section in the proceedings; 27 the court must join the bankruptcy trustee as a party to the 28 proceedings. 29 (15) If a bankruptcy trustee is a party to property settlement proceedings 30 in relation to the parties to a de facto relationship, then, except with 31 the leave of the court, the bankrupt party to the de facto 32 relationship is not entitled to make a submission to the court in 33 connection with any vested bankruptcy property in relation to the 34 bankrupt party. 35 (16) The court must not grant leave under subsection (15) unless the 36 court is satisfied that there are exceptional circumstances. 37 (17) If: [Page Break] 2 proceedings between the parties to a de facto relationship 3 with respect to the property of the parties to the de facto 4 relationship or either of them; and 5 (b) either of the following subparagraphs apply to a party to the 6 de facto relationship (the debtor party): 7 (i) when the application was made, the party was a debtor 8 subject to a personal insolvency agreement; 9 (ii) after the application was made but before it is finally 10 determined, the party becomes a debtor subject to a 11 personal insolvency agreement; and 12 (c) the trustee of the agreement applies to the court to be joined 13 as a party to the proceedings; and 14 (d) the court is satisfied that the interests of the debtor party's 15 creditors may be affected by the making of an order under 16 this section in the proceedings; 17 the court must join the trustee of the agreement as a party to the 18 proceedings. 19 (18) If the trustee of a personal insolvency agreement is a party to 20 property settlement proceedings in relation to the parties to a 21 de facto relationship, then, except with the leave of the court, the 22 party to the de facto relationship who is the debtor subject to the 23 agreement is not entitled to make a submission to the court in 24 connection with any property subject to the agreement. 25 (19) The court must not grant leave under subsection (18) unless the 26 court is satisfied that there are exceptional circumstances. 27 (20) For the purposes of subsections (14) and (17), an application for an 28 order under this section is taken to be finally determined when: 29 (a) the application is withdrawn or dismissed; or 30 (b) an order (other than an interim order) is made as a result of 31 the application. 32 90SN Varying and setting aside orders altering property interests 33 (1) If, on application by a person affected by an order made by a court 34 under section 90SM in property settlement proceedings, the court 35 is satisfied that: [Page Break] 2 duress, suppression of evidence (including failure to disclose 3 relevant information), the giving of false evidence or any 4 other circumstance; or 5 (b) in the circumstances that have arisen since the order was 6 made it is impracticable for the order to be carried out or 7 impracticable for a part of the order to be carried out; or 8 (c) a person has defaulted in carrying out an obligation imposed 9 on the person by the order and, in the circumstances that have 10 arisen as a result of that default, it is just and equitable to 11 vary the order or to set the order aside and make another 12 order in substitution for the order; or 13 (d) in the circumstances that have arisen since the making of the 14 order, being circumstances of an exceptional nature relating 15 to the care, welfare and development of a child of the 16 de facto relationship, the child or, where the applicant has 17 caring responsibility for the child (as defined in 18 subsection (3)), the applicant, will suffer hardship if the court 19 does not vary the order or set the order aside and make 20 another order in substitution for the order; or 21 (e) a proceeds of crime order has been made covering property 22 of the parties to the de facto relationship or either of them, or 23 a proceeds of crime order has been made against a party to 24 the de facto relationship; 25 the court may, in its discretion, vary the order or set the order aside 26 and, if it considers appropriate, make another order under 27 section 90SM in substitution for the order so set aside. 28 Note: For child of a de facto relationship, see section 90RB. 29 (2) A court may, on application by a person affected by an order made 30 by a court under section 90SM in property settlement proceedings, 31 and with the consent of all the parties to the proceedings in which 32 the order was made, vary the order or set the order aside and, if it 33 considers appropriate, make another order under section 90SM in 34 substitution for the order so set aside. 35 (3) For the purposes of paragraph (1)(d), a person has caring 36 responsibility for a child if: 37 (a) the person is a parent of the child with whom the child lives; 38 or 39 (b) a parenting order provides that: [Page Break] 2 (ii) the person has parental responsibility for the child. 3 (4) An order varied or made under subsection (1) or (2) may, after the 4 death of a party to the de facto relationship in relation to which the 5 order was so varied or made, be enforced on behalf of, or against, 6 as the case may be, the estate of the deceased party. 7 (5) If, before proceedings under this section in relation to an order 8 made under section 90SM are completed, a party to the de facto 9 relationship dies: 10 (a) the proceedings may be continued by or against, as the case 11 may be, the legal personal representative of the deceased 12 party and the applicable Rules of Court may make provision 13 in relation to the substitution of the legal personal 14 representative as a party to the proceedings; and 15 (b) if the court is of the opinion: 16 (i) that it would have exercised its powers under 17 subsection (1) or (2) in relation to the order if the 18 deceased party had not died; and 19 (ii) that it is still appropriate to exercise its powers under 20 subsection (1) or (2) in relation to the order; 21 the court may vary the order, set the order aside, or set the 22 order aside and make another order under section 90SM in 23 substitution for the order so set aside; and 24 (c) an order varied or made by the court pursuant to 25 paragraph (b) may be enforced on behalf of, or against, as the 26 case may be, the estate of the deceased party. 27 (6) In the exercise of its powers under subsection (1), (2) or (5), a court 28 must have regard to the interests of, and must make any order 29 proper for the protection of, a bona fide purchaser or other person 30 interested. 31 (7) For the purposes of this section, a creditor of a party to the 32 proceedings in which the order under section 90SM was made is 33 taken to be a person whose interests are affected by the order if the 34 creditor may not be able to recover his or her debt because the 35 order has been made. [Page Break] 2 (a) an order is made by a court under section 90SM in 3 proceedings with respect to the property of the parties to a 4 de facto relationship or either of them; and 5 (b) either of the following subparagraphs apply to a party to the 6 de facto relationship: 7 (i) when the order was made, the party was a bankrupt; 8 (ii) after the order was made, the party became a bankrupt; 9 the bankruptcy trustee is taken to be a person whose interests are 10 affected by the order. 11 (9) For the purposes of this section, if: 12 (a) a party to a de facto relationship is a bankrupt; and 13 (b) an order is made by a court under section 90SM in 14 proceedings with respect to the vested bankruptcy property in 15 relation to the bankrupt party; 16 the bankruptcy trustee is taken to be a person whose interests are 17 affected by the order. 18 (10) For the purposes of this section, if: 19 (a) an order is made by a court under section 90SM in 20 proceedings with respect to the property of the parties to a 21 de facto relationship or either of them; and 22 (b) either of the following subparagraphs apply to a party to the 23 de facto relationship: 24 (i) when the order was made, the party was a debtor subject 25 to a personal insolvency agreement; 26 (ii) after the order was made, the party became a debtor 27 subject to a personal insolvency agreement; 28 the trustee of the agreement is taken to be a person whose interests 29 are affected by the order. 30 Subdivision D--Notification of application 31 90SO Notifying third parties about application 32 The applicable Rules of Court may specify the circumstances in 33 which a person who: 34 (a) applies for an order under this Division; or 35 (b) is a party to a proceeding for an order under this Division; [Page Break] 2 the proceedings. 3 Note: The applicable Rules of Court may, for example, make provision for 4 the notification of a person married to, or in a de facto relationship 5 with, the applicant or respondent to the proceedings. 6 90SP Notifying bankruptcy trustee etc. about application under 7 section 90SE, 90SL, 90SM or 90SN 8 (1) The applicable Rules of Court may make provision for a bankrupt 9 who becomes a party to a proceeding for an application under 10 section 90SE, 90SL, 90SM or 90SN to give notice of the 11 application to the bankruptcy trustee. 12 (2) The applicable Rules of Court may make provision for a debtor 13 subject to a personal insolvency agreement who becomes a party to 14 a proceeding for an application under section 90SE, 90SL, 90SM 15 or 90SN to give notice of the application to the trustee of the 16 agreement. 17 90SQ Notifying court about bankruptcy etc. 18 Bankruptcy 19 (1) The applicable Rules of Court may make provision for a person 20 who: 21 (a) is a party to a de facto relationship that has broken down; and 22 (b) is a party to a proceeding for an application under 23 section 90SE, 90SL, 90SM or 90SN; and 24 (c) before that application is finally determined, becomes a 25 bankrupt; 26 to notify a court exercising jurisdiction under this Act that the 27 person has become a bankrupt. 28 Debtor subject to a personal insolvency agreement 29 (2) The applicable Rules of Court may make provision for a person 30 who: 31 (a) is a party to a de facto relationship that has broken down; and 32 (b) is a party to a proceeding for an application under 33 section 90SE, 90SL, 90SM or 90SN; and [Page Break] 2 debtor subject to a personal insolvency agreement; 3 to notify a court exercising jurisdiction under this Act that the 4 person has become a debtor subject to a personal insolvency 5 agreement. 6 Institution of proceeding under the Bankruptcy Act 1966 7 (3) The applicable Rules of Court may make provision for a person 8 who: 9 (a) is a party to a de facto relationship that has broken down; and 10 (b) is a party to a proceeding for an application under 11 section 90SE, 90SL, 90SM or 90SN; and 12 (c) before that application is finally determined, becomes a party 13 to a proceeding before the Federal Court or the Federal 14 Magistrates Court under the Bankruptcy Act 1966 that relates 15 to: 16 (i) the bankruptcy of the person; or 17 (ii) the person's capacity as a debtor subject to a personal 18 insolvency agreement; 19 to notify a court exercising jurisdiction under this Act of the 20 institution of the proceeding under the Bankruptcy Act 1966. 21 (4) The applicable Rules of Court may make provision for a person 22 who: 23 (a) is the bankruptcy trustee of a bankrupt party to a de facto 24 relationship; and 25 (b) the de facto relationship has broken down; and 26 (c) applies under section 139A of the Bankruptcy Act 1966 for 27 an order under Division 4A of Part VI of that Act; 28 to notify a court exercising jurisdiction under this Act of the 29 making of the application. 30 When application finally determined 31 (5) For the purposes of this section, an application for an order under 32 section 90SE, 90SM or 90SN is taken to be finally determined 33 when: 34 (a) the application is withdrawn or dismissed; or 35 (b) an order (other than an interim order) is made as a result of 36 the application. [Page Break] 2 under section 90SL is taken to be finally determined when: 3 (a) the application is withdrawn or dismissed; or 4 (b) a declaration is made as a result of the application. 5 90SR Notifying non-bankrupt de facto party about application 6 under section 139A of the Bankruptcy Act 1966 7 The applicable Rules of Court may make provision for a person 8 who: 9 (a) is the bankruptcy trustee of a bankrupt party to a de facto 10 relationship; and 11 (b) applies under section 139A of the Bankruptcy Act 1966 for 12 an order under Division 4A of Part VI of that Act in relation 13 to an entity (other than the other party to the de facto 14 relationship); 15 to notify the other party to the de facto relationship of the making 16 of the application if that bankruptcy trustee is aware that the 17 de facto relationship has broken down. 18 Subdivision E--Court powers 19 90SS General powers of court 20 General powers 21 (1) The court, in exercising its powers under this Division, may do any 22 or all of the following: 23 (a) order payment of a lump sum, whether in one amount or by 24 instalments; 25 (b) order payment of a weekly, monthly, yearly or other periodic 26 sum; 27 (c) order that a specified transfer or settlement of property be 28 made by way of maintenance for a party to a de facto 29 relationship; 30 (d) order that payment of any sum ordered to be paid be wholly 31 or partly secured in such manner as the court directs; 32 (e) order that any necessary deed or instrument be executed and 33 that such documents of title be produced or such other things 34 be done as are necessary to enable an order to be carried out [Page Break] 2 an order; 3 (f) appoint or remove trustees; 4 (g) order that payments be made direct to a party to the de facto 5 relationship, to a trustee to be appointed or into court or to a 6 public authority for the benefit of a party to the de facto 7 relationship; 8 (h) make a permanent order, an order pending the disposal of 9 proceedings or an order for a fixed term or for a life or during 10 joint lives or until further order; 11 (i) impose terms and conditions; 12 (j) make an order by consent; 13 (k) make any other order, or grant any other injunction, (whether 14 or not of the same nature as those mentioned in the preceding 15 paragraphs of this section) which it thinks it is necessary to 16 make to do justice; 17 (l) subject to this Act and the applicable Rules of Court, make 18 an order under this Division at any time before or after the 19 making of a decree under another provision of this Act. 20 Note: The court also has specific powers in relation to third parties (see 21 Division 3 of Part VIIIAA (as that Division has effect because of 22 section 90TA)). 23 Limitation for orders or injunctions covered by section 90AF 24 (2) Subsection (1) has effect subject to subsection 90AF(3) (as that 25 subsection has effect because of section 90TA). 26 Note: An order or injunction made or granted under subsection (1) that is of 27 a kind covered by subsection 90AF(1) or (2) can only be made or 28 granted in accordance with subsection 90AF(3). 29 Maintenance orders 30 (3) The making of an order of a kind referred to in paragraph (1)(c), or 31 of any other order under this Division, in relation to the 32 maintenance of a party to a de facto relationship does not prevent a 33 court from making a subsequent order in relation to the 34 maintenance of the party. 35 (4) The applicable Rules of Court may make provision with respect to 36 the making of orders under this Division in relation to the 37 maintenance of parties to de facto relationships (whether as to their [Page Break] 2 and the collection of maintenance payable under them. 3 Injunctions 4 (5) Without limiting paragraph (1)(k), the court may: 5 (a) grant: 6 (i) an interlocutory injunction; or 7 (ii) an injunction in aid of the enforcement of a decree; 8 in any case in which it appears to the court to be just or 9 convenient to do so; and 10 (b) grant an injunction either unconditionally or upon such terms 11 and conditions as the court considers appropriate. 12 Bankruptcy and insolvency 13 (6) If a bankruptcy trustee is a party to a proceeding before the court, 14 the court may make an order under paragraph (1)(e) directed to the 15 bankrupt. 16 (7) If the trustee of a personal insolvency agreement is a party to a 17 proceeding before the court, the court may make an order under 18 paragraph (1)(e) directed to the debtor subject to the agreement. 19 (8) Subsections (6) and (7) do not limit paragraph (1)(e). 20 (9) If a party to a de facto relationship is a bankrupt, a court may, on 21 the application of the other party to the de facto relationship, by 22 interlocutory order, grant an injunction under subsection (1) 23 restraining the bankruptcy trustee from declaring and distributing 24 dividends amongst the bankrupt's creditors. 25 (10) If a party to a de facto relationship is a debtor subject to a personal 26 insolvency agreement, a court may, on the application of the other 27 party to the de facto relationship, by interlocutory order, grant an 28 injunction under subsection (1) restraining the trustee of the 29 agreement from disposing of (whether by sale, gift or otherwise) 30 property subject to the agreement. 31 (11) Subsections (9) and (10) do not limit subsections (1) and (5). [Page Break] 2 In proceedings under this Division, other than proceedings under 3 section 90SL, the court must, as far as practicable, make such 4 orders as will finally determine the financial relationships between 5 the parties to the de facto relationship and avoid further 6 proceedings between them. 7 Division 3--Orders and injunctions binding third parties 8 90TA Orders and injunctions binding third parties 9 (1) In addition to the effect Part VIIIAA has apart from this section, 10 that Part also has effect in relation to: 11 (a) orders and injunctions under Division 2; and 12 (b) proceedings for orders or injunctions under Division 2; 13 with the modifications provided for in subsections (2) and (3). 14 (2) Part VIIIAA has effect in accordance with subsection (1) as if the 15 following substitutions were made: 16 Substitutions to be made Item For a reference in Part VIIIAA to ... substitute a reference to ... 1 marriage de facto relationship 2 section 79 section 90SM 3 section 114 section 90SS 4 paragraph (ca) of the definition of paragraph (c) of the definition of matrimonial cause de facto financial cause 5 orders or injunctions under section 114 orders or injunctions under Division 2 of Part VIIIAB 6 proceedings under section 114 proceedings under Division 2 of Part VIIIAB 7 an injunction under subsection 114(3) an injunction covered by subsection 90SS(5) 17 (3) Part VIIIAA has effect in accordance with subsection (1) as if: 18 (a) subsection 90AD(2) were replaced with the following: 19 "(2) For the purposes of section 90SS (to the extent that it provides for 20 the granting of an injunction in relation to the property of a party to [Page Break] 2 the de facto relationship."; and 3 (b) paragraph 90AF(3)(d) were omitted; and 4 (c) the following paragraph were inserted after paragraph 5 90AF(3)(e): 6 "(ea) for any other injunction--the court is satisfied that, in all the 7 circumstances, it is necessary to grant the injunction to do 8 justice; and"; and 9 (d) the following subsection were added at the end of 10 section 90AF: 11 "(5) Subsections (1) and (2) do not limit subsection 90SS(1).". 12 Division 4--Financial agreements 13 90UA Geographical requirement for agreements made in 14 participating jurisdictions 15 Two or more people can make a Part VIIIAB financial agreement 16 under section 90UB, 90UC or 90UD only if the spouse parties are 17 ordinarily resident in a participating jurisdiction when they make 18 the agreement. 19 90UB Financial agreements before de facto relationship 20 (1) If: 21 (a) people who are contemplating entering into a de facto 22 relationship with each other make a written agreement with 23 respect to any of the matters mentioned in subsection (2) in 24 the event of the breakdown of the de facto relationship; and 25 (b) at the time of the making of the agreement, the people are not 26 the spouse parties to any other binding Part VIIIAB financial 27 agreement with respect to any of those matters; and 28 (c) the agreement is expressed to be made under this section; 29 the agreement is a Part VIIIAB financial agreement. The people 30 may make the Part VIIIAB financial agreement with one or more 31 other people. 32 (2) The matters referred to in paragraph (1)(a) are the following: 33 (a) how all or any of the: 34 (i) property; or [Page Break] 2 of either or both of the spouse parties at the time when the 3 agreement is made, or at a later time and during the de facto 4 relationship, is to be distributed; 5 (b) the maintenance of either of the spouse parties. 6 (3) A Part VIIIAB financial agreement made as mentioned in 7 subsection (1) may also contain matters incidental or ancillary to 8 those mentioned in subsection (2). 9 (4) A Part VIIIAB financial agreement (the new agreement) made as 10 mentioned in subsection (1) may terminate a previous Part VIIIAB 11 financial agreement (however made) if all of the parties to the 12 previous agreement are parties to the new agreement. 13 90UC Financial agreements during de facto relationship 14 (1) If: 15 (a) while in a de facto relationship, the parties to the de facto 16 relationship make a written agreement about any of the 17 matters mentioned in subsection (2) in the event of the 18 breakdown of the de facto relationship; and 19 (b) at the time of the making of the agreement, the parties to the 20 de facto relationship are not the spouse parties to any other 21 binding Part VIIIAB financial agreement with respect to any 22 of those matters; and 23 (c) the agreement is expressed to be made under this section; 24 the agreement is a Part VIIIAB financial agreement. The parties 25 to the de facto relationship may make the Part VIIIAB financial 26 agreement with one or more other people. 27 (2) The matters referred to in paragraph (1)(a) are the following: 28 (a) how all or any of the: 29 (i) property; or 30 (ii) financial resources; 31 of either or both of the spouse parties at the time when the 32 agreement is made, or at a later time and during the de facto 33 relationship, is to be distributed; 34 (b) the maintenance of either of the spouse parties. [Page Break] 2 subsection (1) may also contain matters incidental or ancillary to 3 those mentioned in subsection (2). 4 (4) A Part VIIIAB financial agreement (the new agreement) made as 5 mentioned in subsection (1) may terminate a previous Part VIIIAB 6 financial agreement (however made) if all of the parties to the 7 previous agreement are parties to the new agreement. 8 90UD Financial agreements after breakdown of a de facto 9 relationship 10 (1) If: 11 (a) after the breakdown of a de facto relationship, the parties to 12 the de facto relationship make a written agreement with 13 respect to any of the matters mentioned in subsection (2); and 14 (b) at the time of the making of the agreement, the parties to the 15 de facto relationship are not the spouse parties to any other 16 binding Part VIIIAB financial agreement with respect to any 17 of those matters; and 18 (c) the agreement is expressed to be made under this section; 19 the agreement is a Part VIIIAB financial agreement. The parties 20 to the de facto relationship may make the Part VIIIAB financial 21 agreement with one or more other people. 22 (2) The matters referred to in paragraph (1)(a) are the following: 23 (a) how all or any of the: 24 (i) property; or 25 (ii) financial resources; 26 that either or both of the spouse parties had or acquired 27 during the de facto relationship is to be distributed; 28 (b) the maintenance of either of the spouse parties. 29 (3) A Part VIIIAB financial agreement made as mentioned in 30 subsection (1) may also contain matters incidental or ancillary to 31 those mentioned in subsection (2). 32 (4) A Part VIIIAB financial agreement (the new agreement) made as 33 mentioned in subsection (1) may terminate a previous Part VIIIAB 34 financial agreement (however made) if all of the parties to the 35 previous agreement are parties to the new agreement. [Page Break] 2 Part VIIIAB financial agreements 3 How State agreements can become Part VIIIAB financial 4 agreements 5 (1) This section applies if: 6 (a) 2 people (the couple) have made a written agreement, signed 7 by both of them, with respect to any of the matters (the 8 eligible agreed matters) mentioned in subsection (3); and 9 (b) the agreement was made under a non-referring State de facto 10 financial law; and 11 (c) either: 12 (i) a court could not, because of that law, make an order 13 under that law that is inconsistent with the agreement 14 with respect to any of the eligible agreed matters; or 15 (ii) a court could not, because of that law, make an order 16 under that law that is with respect to any of the eligible 17 agreed matters to which the agreement applies; and 18 (d) at the time the agreement was made, the members of the 19 couple were not the spouse parties to any binding 20 Part VIIIAB financial agreement with respect to any of the 21 eligible agreed matters; and 22 (e) at a later time (the transition time), the couple's 23 circumstances change so that: 24 (i) if the de facto relationship has not broken down-- 25 sections 90SB, 90SD and 90SK would not prevent a 26 court from making an order or declaration under this 27 Part in relation to the eligible agreed matters if the 28 de facto relationship were to break down; or 29 (ii) if the de facto relationship has broken down-- 30 sections 90SB, 90SD and 90SK do not prevent a court 31 from making an order or declaration under this Part in 32 relation to the eligible agreed matters; and 33 (f) immediately before the transition time: 34 (i) the agreement was in force under the non-referring State 35 de facto financial law; and 36 (ii) the couple were not married to each other. [Page Break] 2 commencement of this section, and to agreements made with one 3 or more other people. 4 Note: This section extends to agreements made in contemplation of a 5 de facto relationship, during a de facto relationship or after a de facto 6 relationship has broken down. 7 (2) For the purposes of this Act, the agreement is taken, on and after 8 the transition time, to be a Part VIIIAB financial agreement to the 9 extent that the agreement deals with: 10 (a) the eligible agreed matters; and 11 (b) matters incidental or ancillary to the eligible agreed matters. 12 Note: This means that, after the transition time, the agreement can only be 13 enforced, varied, terminated or otherwise set aside under this Act. 14 Eligible agreed matters 15 (3) The matters referred to in paragraph (1)(a) are the following: 16 (a) how all or any of the: 17 (i) property; or 18 (ii) financial resources; 19 of either member, or both members, of the couple at the time 20 when the agreement is made, or at a later time and during a 21 de facto relationship between them, is to be distributed; 22 (b) the maintenance of either member of the couple; 23 in the event of the breakdown of a de facto relationship between 24 them, or in relation to a de facto relationship between them that has 25 broken down, as the case requires. 26 (4) For the purposes of paragraph (1)(c), disregard whether the 27 non-referring State de facto financial law permits the court to make 28 such an order if the court varies or sets aside the agreement. 29 90UF Need for separation declaration for certain provisions of 30 financial agreement to take effect 31 (1) A binding Part VIIIAB financial agreement, to the extent to which 32 it deals with how, in the event of the breakdown of the de facto 33 relationship, all or any of the property or financial resources of 34 either or both of the spouse parties: 35 (a) at the time when the agreement is made; or [Page Break] 2 are to be dealt with, is of no force or effect until a separation 3 declaration is made. 4 Note: Before the separation declaration is made, the financial agreement will 5 be of force and effect in relation to the other matters it deals with 6 (except for any matters covered by section 90UG). 7 (2) Subsection (1) ceases to apply if either or both of the spouse parties 8 die. 9 Note: This means the financial agreement will be of force and effect in 10 relation to the matters mentioned in subsection (1) from the time of 11 the death(s). 12 Requirements for a valid separation declaration 13 (3) A separation declaration is a written declaration that complies with 14 subsections (4) and (5), and may be included in the Part VIIIAB 15 financial agreement to which it relates. 16 (4) The declaration must be signed by at least one of the spouse parties 17 to the Part VIIIAB financial agreement. 18 (5) The declaration must state that: 19 (a) the spouse parties lived in a de facto relationship; and 20 (b) the spouse parties have separated and are living separately 21 and apart at the declaration time; and 22 (c) in the opinion of the spouse parties making the declaration, 23 there is no reasonable likelihood of cohabitation being 24 resumed. 25 Meaning of declaration time 26 (6) In this section: 27 declaration time means the time when the declaration was signed 28 by a spouse party to the Part VIIIAB financial agreement (or last 29 signed by a spouse party to the agreement, if both spouse parties to 30 the agreement have signed). [Page Break] 2 agreements take effect 3 A binding Part VIIIAB financial agreement, to the extent to which 4 it provides for matters covered by subsection 90UB(3) or 90UC(3) 5 or paragraph 90UE(2)(b), is of no force or effect unless and until 6 the de facto relationship breaks down. 7 90UH Requirements with respect to provisions in financial 8 agreements relating to the maintenance of a party or a 9 child or children 10 (1) A provision of a Part VIIIAB financial agreement that relates to the 11 maintenance of a spouse party to the agreement or a child or 12 children is void unless the provision specifies: 13 (a) the party, or the child or children, for whose maintenance 14 provision is made; and 15 (b) the amount provided for, or the value of the portion of the 16 relevant property attributable to, the maintenance of the 17 party, or of the child or each child, as the case may be. 18 Note: While Part VIIIAB financial agreements are not made with respect to 19 child maintenance, provisions about child maintenance could be 20 included in the same document for child support (or other 21 non-Part VIIIAB) purposes. 22 (2) Subsection (1) does not apply in relation to a Part VIIIAB financial 23 agreement covered by section 90UE. 24 90UI Certain provisions in financial agreements 25 (1) No provision of a Part VIIIAB financial agreement excludes or 26 limits the power of a court to make an order under Division 2 in 27 relation to the maintenance of a party to the agreement if 28 subsection (2) applies. 29 (2) This subsection applies if the court is satisfied that, when the 30 agreement came into effect, the circumstances of the party were 31 such that, taking into account the terms and effect of the 32 agreement, the party was unable to support himself or herself 33 without an income tested pension, allowance or benefit. 34 (3) To avoid doubt, a provision in a Part VIIIAB financial agreement: [Page Break] 2 90UD(1); or 3 (b) covered by section 90UE; 4 that provides for property or financial resources owned by a spouse 5 party to the agreement to continue in the ownership of that party is 6 taken, for the purposes of that subsection or section, to be a 7 provision with respect to how the property or financial resources 8 are to be distributed. 9 90UJ When financial agreements are binding 10 (1) A Part VIIIAB financial agreement (other than an agreement 11 covered by section 90UE) is binding on the parties to the 12 agreement if, and only if: 13 (a) the agreement is signed by all parties; and 14 (b) the agreement contains, in relation to each spouse party to the 15 agreement, a statement to the effect that the party to whom 16 the statement relates has been provided, before the agreement 17 was signed by him or her, as certified in an annexure to the 18 agreement, with independent legal advice from a legal 19 practitioner as to the following matters: 20 (i) the effect of the agreement on the rights of that party; 21 (ii) the advantages and disadvantages, at the time that the 22 advice was provided, to the party of making the 23 agreement; and 24 (c) the annexure to the agreement contains a certificate signed by 25 the person providing the independent legal advice stating that 26 the advice was provided; and 27 (d) the agreement has not been terminated and has not been set 28 aside by a court; and 29 (e) after the agreement is signed, the original agreement is given 30 to one of the spouse parties and a copy is given to each of the 31 other parties. 32 Note: For the manner in which the contents of a financial agreement may be 33 proved, see section 48 of the Evidence Act 1995. 34 (2) A Part VIIIAB financial agreement covered by section 90UE is 35 binding on the parties to the agreement if, and only if, the 36 agreement has not been terminated and has not been set aside by a 37 court. [Page Break] 2 making the agreement, the parties to the agreement marry each 3 other. 4 (4) A court may make such orders for the enforcement of a 5 Part VIIIAB financial agreement that is binding on the parties to 6 the agreement as it thinks necessary. 7 90UK Effect of death of party to financial agreement 8 A Part VIIIAB financial agreement that is binding on the parties to 9 the agreement continues to operate despite the death of a party to 10 the agreement and operates in favour of, and is binding on, the 11 legal personal representative of that party. 12 Note: If the parties are still in the de facto relationship when one of them 13 dies, the de facto relationship is not taken to have broken down for the 14 purposes of enforcing the matters mentioned in the financial 15 agreement (see the definition of breakdown in subsection 4(1)). 16 90UL Termination of financial agreement 17 (1) The parties to a Part VIIIAB financial agreement may terminate the 18 agreement for the purposes of this Act only by: 19 (a) including a provision to that effect in another Part VIIIAB 20 financial agreement as mentioned in subsection 90UB(4), 21 90UC(4) or 90UD(4); or 22 (b) making a written agreement (a Part VIIIAB termination 23 agreement) to that effect. 24 (2) A Part VIIIAB termination agreement is binding on the parties if, 25 and only if: 26 (a) the termination agreement is signed by all parties to the 27 Part VIIIAB financial agreement; and 28 (b) the termination agreement contains, in relation to each spouse 29 party, a statement to the effect that the party to whom the 30 statement relates has been provided, before the termination 31 agreement was signed by him or her, as certified in an 32 annexure to the termination agreement, with independent 33 legal advice from a legal practitioner as to the following 34 matters: 35 (i) the effect of the termination agreement on the rights of 36 that party; [Page Break] 2 advice was provided, to the party of making the 3 termination agreement; and 4 (c) the annexure to the termination agreement contains a 5 certificate signed by the person providing the independent 6 legal advice stating that the advice was provided; and 7 (d) the termination agreement has not been set aside by a court; 8 and 9 (e) after the termination agreement is signed, the original 10 termination agreement is given to one of the spouse parties 11 and a copy is given to each of the other parties. 12 (3) A court may, on an application by: 13 (a) a person who was a party to the Part VIIIAB financial 14 agreement; or 15 (b) any other interested person; 16 make such order or orders (including an order for the transfer of 17 property) as it considers just and equitable for the purpose of 18 preserving or adjusting the rights of: 19 (c) persons who were parties to the Part VIIIAB financial 20 agreement; and 21 (d) any other interested persons. 22 Note: For the manner in which the contents of a Part VIIIAB financial 23 agreement may be proved, see section 48 of the Evidence Act 1995. 24 90UM Circumstances in which court may set aside a financial 25 agreement or termination agreement 26 (1) A court may make an order setting aside, for the purposes of this 27 Act, a Part VIIIAB financial agreement or a Part VIIIAB 28 termination agreement if, and only if, the court is satisfied that: 29 (a) the agreement was obtained by fraud (including 30 non-disclosure of a material matter); or 31 (b) a party to the agreement entered into the agreement: 32 (i) for the purpose, or for purposes that included the 33 purpose, of defrauding or defeating a creditor or 34 creditors of the party; or 35 (ii) with reckless disregard of the interests of a creditor or 36 creditors of the party; or [Page Break] 2 the agreement: 3 (i) for the purpose, or for purposes that included the 4 purpose, of defrauding another person who is a party to 5 a de facto relationship (the other de facto relationship) 6 with a spouse party; or 7 (ii) for the purpose, or for purposes that included the 8 purpose, of defeating the interests of that other person in 9 relation to any possible or pending application for an 10 order under section 90SM, or a declaration under 11 section 90SL, in relation to the other de facto 12 relationship; or 13 (iii) with reckless disregard of those interests of that other 14 person; or 15 (d) a party (the agreement party) to the agreement entered into 16 the agreement: 17 (i) for the purpose, or for purposes that included the 18 purpose, of defrauding another person who is a party to 19 a marriage with a spouse party; or 20 (ii) for the purpose, or for purposes that included the 21 purpose, of defeating the interests of that other person in 22 relation to any possible or pending application for an 23 order under section 79, or a declaration under 24 section 78, in relation to the marriage (or void 25 marriage); or 26 (iii) with reckless disregard of those interests of that other 27 person; or 28 (e) the agreement is void, voidable or unenforceable; or 29 (f) in the circumstances that have arisen since the agreement was 30 made it is impracticable for the agreement or a part of the 31 agreement to be carried out; or 32 (g) since the making of the agreement, a material change in 33 circumstances has occurred (being circumstances relating to 34 the care, welfare and development of a child of the de facto 35 relationship) and, as a result of the change, the child or, if the 36 applicant has caring responsibility for the child (as defined in 37 subsection (4)), a party to the agreement will suffer hardship 38 if the court does not set the agreement aside; or [Page Break] 2 agreement--a party to the agreement engaged in conduct that 3 was, in all the circumstances, unconscionable; or 4 (i) a payment flag is operating under Part VIIIB on a 5 superannuation interest covered by the agreement and there is 6 no reasonable likelihood that the operation of the flag will be 7 terminated by a flag lifting agreement under that Part; or 8 (j) the agreement covers at least one superannuation interest that 9 is an unsplittable interest for the purposes of Part VIIIB; or 10 (k) if the agreement is a Part VIIIAB financial agreement 11 covered by section 90UE--subsection (5) applies. 12 Note: For child of a de facto relationship, see section 90RB. 13 (2) For the purposes of paragraph (1)(b), creditor, in relation to a party 14 to the agreement, includes a person who could reasonably have 15 been foreseen by the party as being reasonably likely to become a 16 creditor of the party. 17 (3) For the purposes of the application of subparagraph (1)(c)(ii) to a 18 Part VIIIAB financial agreement covered by section 90UE: 19 (a) the reference in that subparagraph to an order under 20 section 90SM is taken to include a reference to an order 21 (however described) under a corresponding provision (if any) 22 of the non-referring State de facto financial law concerned; 23 and 24 (b) the reference in that subparagraph to a declaration under 25 section 90SL is taken to include a reference to a declaration 26 (however described) under a corresponding provision (if any) 27 of the non-referring State de facto financial law concerned. 28 (4) For the purposes of paragraph (1)(g), a person has caring 29 responsibility for a child if: 30 (a) the person is a parent of the child with whom the child lives; 31 or 32 (b) a parenting order provides that: 33 (i) the child is to live with the person; or 34 (ii) the person has parental responsibility for the child. 35 (5) This subsection applies if: [Page Break] 2 provided, before signing the agreement, with independent 3 legal advice from a legal practitioner about the following: 4 (i) the effect of the agreement on the rights of that party; 5 (ii) the advantages and disadvantages, at the time that the 6 advice was provided, to the party of making the 7 agreement; or 8 (b) if the advice was provided to one of the spouse parties--a 9 signed statement by the legal practitioner stating that the 10 advice was provided was neither: 11 (i) included in, or attached to, the agreement; or 12 (ii) given to the party; 13 and it would be unjust and inequitable, having regard to the eligible 14 agreed matters (within the meaning of section 90UE) for the 15 agreement, if the court does not set the agreement aside. 16 (6) A court may, on an application by a person who was a party to the 17 Part VIIIAB financial agreement that has been set aside, or by any 18 other interested person, make such order or orders (including an 19 order for the transfer of property) as it considers just and equitable 20 for the purpose of preserving or adjusting the rights of persons who 21 were parties to that financial agreement and any other interested 22 persons. 23 (7) An order under subsection (1) or (6) may, after the death of a party 24 to the proceedings in which the order was made, be enforced on 25 behalf of, or against, as the case may be, the estate of the deceased 26 party. 27 (8) If a party to proceedings under this section dies before the 28 proceedings are completed: 29 (a) the proceedings may be continued by or against, as the case 30 may be, the legal personal representative of the deceased 31 party and the applicable Rules of Court may make provision 32 in relation to the substitution of the legal personal 33 representative as a party to the proceedings; and 34 (b) if the court is of the opinion: 35 (i) that it would have exercised its powers under this 36 section if the deceased party had not died; and 37 (ii) that it is still appropriate to exercise those powers; [Page Break] 2 subsection (1) or (6); and 3 (c) an order under paragraph (b) may be enforced on behalf of, 4 or against, as the case may be, the estate of the deceased 5 party. 6 (9) The court must not make an order under this section if the order 7 would: 8 (a) result in the acquisition of property from a person otherwise 9 than on just terms; and 10 (b) be invalid because of paragraph 51(xxxi) of the Constitution. 11 For this purpose, acquisition of property and just terms have the 12 same meanings as in paragraph 51(xxxi) of the Constitution. 13 90UN Validity, enforceability and effect of financial agreements and 14 termination agreements 15 The question whether a Part VIIIAB financial agreement or a 16 Part VIIIAB termination agreement is valid, enforceable or 17 effective is to be determined by the court according to the 18 principles of law and equity that are applicable in determining the 19 validity, enforceability and effect of contracts and purported 20 contracts, and, in proceedings relating to such an agreement, the 21 court: 22 (a) subject to paragraph (b), has the same powers, may grant the 23 same remedies and must have the same regard to the rights of 24 third parties as the High Court has, may grant and is required 25 to have in proceedings in connection with contracts or 26 purported contracts, being proceedings in which the High 27 Court has original jurisdiction; and 28 (b) has power to make an order for the payment, by a party to the 29 agreement to another party to the agreement, of interest on an 30 amount payable under the agreement, from the time when the 31 amount became or becomes due and payable, at a rate not 32 exceeding the rate prescribed by the applicable Rules of 33 Court; and 34 (c) in addition to, or instead of, making an order or orders under 35 paragraph (a) or (b), may order that the agreement, or a 36 specified part of the agreement, be enforced as if it were an 37 order of the court. [Page Break] 2 90VA Notification of proceeds of crime orders etc. 3 (1) If: 4 (a) a person makes an application for an order, under this Part, 5 with respect to: 6 (i) the property of the parties to a de facto relationship or 7 either of them; or 8 (ii) the maintenance of a party to a de facto relationship; 9 and 10 (b) the person knows that the property of the parties to the 11 de facto relationship or either of them is covered by: 12 (i) a proceeds of crime order; or 13 (ii) a forfeiture application; 14 the person must: 15 (c) disclose in the application the proceeds of crime order or 16 forfeiture application; and 17 (d) give to the court a sealed copy of that order or application. 18 (2) A person who does not comply with subsection (1) commits an 19 offence punishable, on conviction, by a fine not exceeding 50 20 penalty units. 21 (3) If: 22 (a) a person is a party to de facto property settlement or 23 maintenance proceedings under this Part; and 24 (b) the person is notified by the DPP that the property of the 25 parties to the de facto relationship or either of them is 26 covered by: 27 (i) a proceeds of crime order; or 28 (ii) a forfeiture application; 29 the person must notify the Registry Manager in writing of the 30 proceeds of crime order or forfeiture application. 31 (4) A person who does not comply with subsection (3) commits an 32 offence punishable, on conviction, by a fine not exceeding 50 33 penalty units. [Page Break] 2 by proceeds of crime orders etc. 3 (1) A court in which property settlement, or maintenance proceedings, 4 are pending must stay those proceedings if notified under 5 section 90VA in relation to the proceedings. 6 (2) The court may, before staying proceedings under subsection (1), 7 invite or require the DPP to make submissions relating to staying 8 the proceedings. 9 (3) A court must, on the application of the DPP, stay de facto property 10 settlement or maintenance proceedings under this Part if the 11 property of the parties to the de facto relationship or either of them 12 is covered by: 13 (a) a proceeds of crime order; or 14 (b) a forfeiture application. 15 (4) A court must notify the DPP if the court stays de facto property 16 settlement or maintenance proceedings under subsection (1) or (3). 17 (5) The DPP must notify the Registry Manager if: 18 (a) a proceeds of crime order ceases to be in force; or 19 (b) a forfeiture application is finally determined. 20 (6) For the purposes of subsection (5), a forfeiture application is taken 21 to be finally determined when: 22 (a) the application is withdrawn; or 23 (b) if the application is successful--the resulting forfeiture order 24 comes into force; or 25 (c) if the application is unsuccessful--the time within which an 26 appeal can be made has expired and any appeals have been 27 finally determined or otherwise disposed of. 28 90VC Lifting a stay 29 (1) A court that stayed the de facto property settlement or maintenance 30 proceedings under section 90VB must wholly or partially lift the 31 stay if: 32 (a) either party to the proceedings makes an application for the 33 stay to be lifted and the DPP consents to such an application; 34 or [Page Break] 2 (2) A court that stayed the de facto property settlement or maintenance 3 proceedings under section 90VB may, on its own motion, wholly 4 or partially lift the stay if the DPP consents to such a motion. 5 (3) Giving the Registry Manager written notice of the DPP's consent 6 under this section is taken to be the giving of that consent, unless 7 the court requires the DPP to appear in the proceedings. The notice 8 may be given by the DPP or by a party to the proceedings. 9 90VD Intervention by DPP 10 (1) The DPP may intervene in any de facto property settlement or 11 maintenance proceedings in relation to which a court is notified 12 under section 90VA, or in any proceedings under section 90VB or 13 90VC in which the DPP is not already a party. 14 (2) If the DPP intervenes, the DPP is taken to be a party to the 15 proceedings with all the rights, duties and liabilities of a party. 16 Division 6--Instruments not liable to duty 17 90WA Certain instruments not liable to duty 18 (1) None of the following is subject to any duty or charge under any 19 law of a State or Territory or any law of the Commonwealth that 20 applies only in relation to a Territory: 21 (a) a deed or other instrument executed by a person for the 22 purposes of, or in accordance with, an order made under 23 Division 2; 24 (b) a Part VIIIAB financial agreement; 25 (c) a Part VIIIAB termination agreement; 26 (d) a deed or other instrument executed by a person for the 27 purposes of, or in accordance with, an order or Part VIIIAB 28 financial agreement made under Division 4. 29 (2) Subsection (1) does not apply to a liability to pay duty or charge (if 30 any) in relation to a Part VIIIAB financial agreement covered by 31 section 90UE if the liability arises before the transition time 32 (within the meaning of that section) for the agreement. [Page Break] 2 subsection (2) in relation to an agreement has no effect for the 3 purposes of this Act. In particular, the failure does not affect 4 whether the agreement may be presented in evidence in a court for 5 the purposes of this Act. 6 51 Section 90MA 7 Omit all the words after "allocated", substitute: 8 between: 9 (a) the parties to a marriage; or 10 (b) the parties to a de facto relationship; 11 either by agreement or by court order. 12 52 Section 90MC 13 Before "A superannuation", insert "(1)". 14 Note: The heading to section 90MC is altered by omitting "meaning of matrimonial cause" 15 and substituting "meanings of matrimonial cause and de facto financial cause". 16 53 At the end of section 90MC 17 Add: 18 (2) A superannuation interest is to be treated as property for the 19 purposes of paragraph (c) of the definition of de facto financial 20 cause in section 4. 21 54 Section 90MD (definition of declaration time) 22 Before "means", insert ", in relation to a separation declaration,". 23 55 Section 90MD (definition of spouse) 24 Repeal the definition, substitute: 25 spouse means: 26 (a) a party to a marriage; or 27 (b) a party to a de facto relationship. 28 56 Section 90MD (definition of superannuation agreement) 29 Omit "section 90MH", substitute "sections 90MH and 90MHA". 30 57 After subsection 90MG(1) [Page Break] 2 (1A) A Part VIIIAB financial agreement is in force at any time when it 3 is binding on the parties in accordance with section 90UJ. 4 58 Subsection 90MG(2) 5 After "financial agreement", insert ", or relevant Part VIIIAB financial 6 agreement,". 7 59 After section 90MH 8 Insert: 9 90MHA Superannuation agreement to be included in Part VIIIAB 10 financial agreement if about a de facto relationship 11 (1) A Part VIIIAB financial agreement may include an agreement that 12 deals with superannuation interests of either or both of the spouse 13 parties to the agreement as if those interests were property. It does 14 not matter whether or not the superannuation interests are in 15 existence at the time the agreement is made. 16 (2) The part of the Part VIIIAB financial agreement that deals with 17 superannuation interests is a superannuation agreement for the 18 purposes of this Part. 19 (3) A superannuation agreement has effect only in accordance with 20 this Part. In particular, it cannot be enforced under Part VIIIAB. 21 (4) A superannuation agreement that is included in a Part VIIIAB 22 financial agreement under section 90UB (in contemplation of a 23 de facto relationship) has no effect unless and until the spouse 24 parties enter into that de facto relationship. 25 (5) In applying sections 90UB, 90UC, 90UD and 90UE for the 26 purposes of this Division, a superannuation interest of a spouse 27 party to a Part VIIIAB financial agreement is treated as being 28 acquired at the time when that party first becomes a member of the 29 eligible superannuation plan in respect of that interest. 30 Note: The heading to section 90MH is altered by adding at the end "if about a marriage". 31 60 Before paragraph 90MJ(1)(e) 32 Insert: [Page Break] 2 de facto relationship is broken down at the operative time; 3 and 4 61 Subsection 90MK(2) (paragraph (a) of the definition of 5 service time) 6 Repeal the paragraph, substitute: 7 (a) if the parties are divorced--a copy of the divorce order that 8 has terminated the marriage; and 9 (aa) if the parties are not divorced--a separation declaration with 10 a declaration time that is not more than 28 days before the 11 service on the trustee; and 12 62 Section 90MM 13 Before "If a", insert "(1)". 14 63 At the end of section 90MM 15 Add: 16 (2) If a court makes an order under section 90UM setting aside a 17 Part VIIIAB financial agreement in respect of which a payment 18 flag is operating, the court may also make an order terminating the 19 operation of the flag. 20 Note: Under section 90MHA, a superannuation agreement relating to a 21 de facto relationship must be part of a Part VIIIAB financial 22 agreement. Therefore, setting aside the financial agreement also has 23 the effect of setting aside the superannuation agreement. 24 64 Subsection 90MN(4) 25 Omit all the words after "satisfied", substitute: 26 as to: 27 (a) if the spouses are parties to a marriage--any of the grounds 28 set out in subsection 90K(1) (other than paragraph 29 90K(1)(f)); or 30 (b) if the spouses are parties to a de facto relationship--any of 31 the grounds set out in subsection 90UM(1) (other than 32 paragraph 90UM(1)(i)). 33 65 At the end of subsection 90MN(5) 34 Add "or Part VIIIAB financial agreement". [Page Break] 2 Add: 3 (7) An order under section 90UM setting aside a Part VIIIAB financial 4 agreement also operates to set aside the related flag lifting 5 agreement. 6 67 Subsection 90MO(1) 7 After "79", insert "or 90SM". 8 Note: The heading to section 90MO is altered by inserting "or 90SM" after "79". 9 68 After subsection 90MP(2) 10 Insert: 11 Spouses who are parties to a marriage 12 (2A) Subsections (3) to (5) apply if the spouses are parties to a marriage. 13 69 Subsection 90MP(5) 14 Omit "this section", substitute "subsections (3) to (4A)". 15 70 Subsection 90MP(6) 16 Omit "this section", substitute "subsections (3) to (5)". 17 71 At the end of section 90MP 18 Add: 19 Spouses who are parties to a de facto relationship 20 (7) Subsections (8) to (12) apply if the spouses are parties to a de facto 21 relationship. 22 (8) If section 90MQ applies to the declaration, then the declaration 23 must state that: 24 (a) the spouses lived in a de facto relationship; and 25 (b) the spouses separated and thereafter lived separately and 26 apart for a continuous period of at least 12 months 27 immediately before the declaration time; and 28 (c) in the opinion of the spouse (or spouses) making the 29 declaration, there is no reasonable likelihood of cohabitation 30 being resumed. [Page Break] 2 declaration must state that the spouses lived in a de facto 3 relationship, but are separated, at the declaration time. 4 (10) If either or both of the spouses have died, then the declaration must 5 state: 6 (a) if section 90MQ applies to the declaration--that: 7 (i) the spouses lived in a de facto relationship; but 8 (ii) at the most recent time when both spouses were alive, 9 the spouses were separated and had lived separately and 10 apart for a continuous period of at least 12 months 11 immediately before that time; or 12 (b) if section 90MQ does not apply to the declaration--that the 13 spouses: 14 (i) lived in a de facto relationship; but 15 (ii) were separated at the most recent time when both 16 spouses were alive. 17 Subsections (8) and (9) have effect subject to this subsection. 18 (11) For the purposes of subsection (8) and paragraph (10)(a), the 19 spouses can have separated and be living separately and apart even 20 if: 21 (a) their cohabitation was brought to an end by the action or 22 conduct of one only of them; or 23 (b) they have continued to reside in the same residence; or 24 (c) either of them has rendered some household services to the 25 other. 26 (12) For the purposes of subsection (8) and paragraph (10)(a), if, after 27 the spouses separated, they resumed cohabitation on one occasion 28 but, within a period of 3 months after the resumption of 29 cohabitation, they again separated and thereafter lived separately 30 and apart up to the relevant time referred to in paragraph (8)(b) or 31 (10)(a): 32 (a) the periods of living separately and apart before and after the 33 period of cohabitation may be aggregated as if they were one 34 continuous period; but 35 (b) the period of cohabitation shall not be taken to be part of the 36 period of living separately and apart. 37 72 Subsection 90MS(1) [Page Break] 2 Note: The heading to section 90MS is altered by inserting "or 90SM" after "79". 3 73 Subsection 90MS(1) (note 1) 4 Repeal the note, substitute: 5 Note 1: Although the orders are made in accordance with this Division, they 6 will be made under either section 79 or 90SM. Therefore they will be 7 generally subject to all the same provisions as other orders made 8 under that section. 9 74 At the end of subsection 90MS(1) 10 Add: 11 Note 3: Subsections 44(5) and (6) and sections 90SB, 90SK and 90MO limit 12 the scope of section 90SM. 13 75 Subsection 90MS(2) 14 After "79", insert "or 90SM". 15 76 Subsection 90MV(1) 16 After "79", insert "or 90SM". 17 77 Subsection 90MX(3) (example) 18 Omit "Example", substitute "Example 1". 19 78 At the end of subsection 90MX(3) 20 Add: 21 Example 2: W has a superannuation interest that is subject to 3 payment splits in 22 respect of W's de facto relationship with X, W's marriage to Y and 23 W's de facto relationship with Z (in that order). The operative times of 24 the payment splits are in the same order as the relationships. Assume 25 each payment split provides for a 50% share to the non-member 26 spouse. W becomes entitled to a splittable payment of $100. The final 27 payment entitlements are as follows: X gets $50. Y gets $25. Z gets 28 $12.50. W gets the remaining $12.50. 29 79 Subsection 105(2A) 30 After "90KA(c)", insert "or 90UN(c)". 31 80 Paragraph 106B(1A)(a) 32 After "marriage", insert ", or a party to a de facto relationship,". [Page Break] 2 After "marriage", insert ", or a party to a de facto relationship,". 3 82 Subsection 106B(4A) 4 After "80(1)", insert "or 90SS(1)". 5 83 At the end of subsection 107(1) 6 Add "or de facto financial cause". 7 84 Section 112AA (paragraph (b) of the definition of order 8 under this Act) 9 After "section", insert "90SS or". [Page Break] 2 Part 2--Transitional provisions 3 Division 1--Introduction 4 85 Interpretation 5 In this Part: 6 commencement means the commencement of this Schedule. 7 earlier participating jurisdiction means a State or Territory that is a 8 participating jurisdiction at commencement. 9 later participating jurisdiction means a State that becomes a 10 participating jurisdiction after commencement. 11 new Act means the Family Law Act 1975 as in force after 12 commencement. 13 Part VIIIB means Part VIIIB of the new Act to the extent to which that 14 Part relates to a superannuation interest to be allocated between the 15 parties to a de facto relationship. 16 preserved law, of a State or Territory, means a law of the State or 17 Territory relating to financial matters relating to the parties to de facto 18 relationships arising out of the breakdown of those de facto 19 relationships. 20 transition time, for a later participating jurisdiction, means the time the 21 State becomes a participating jurisdiction. 22 Division 2--New Act does not apply to de facto 23 relationships breaking down before 24 commencement 25 86 De facto relationships that broke down before 26 commencement 27 (1) Parts VIIIAB and VIIIB of the new Act do not extend to a de facto 28 relationship that broke down before commencement. 29 Note 1: After commencement, State/Territory law will apply to any proceedings etc. to enforce, 30 discharge, suspend, revive or vary an order or injunction in force at commencement in 31 relation to the maintenance, or the distribution of property, of the parties to the de facto 32 relationship arising out of the breakdown of the de facto relationship. [Page Break] 2 pending at commencement for an order or injunction in relation to the maintenance, or 3 the distribution of property, of the parties to the de facto relationship arising out of the 4 breakdown of the de facto relationship. 5 Note 3: After commencement, State/Territory law will continue to apply if the parties to the 6 de facto relationship have made, or make, an agreement about financial matters arising 7 out of the breakdown of the de facto relationship. 8 Note 4: Section 90UE of the new Act will not apply in relation to an agreement made, by the 9 parties to the de facto relationship under a non-referring State de facto financial law, 10 about financial matters arising out of the breakdown of the de facto relationship. Such 11 an agreement will not be affected by the new Act. 12 (2) To avoid doubt, section 90RC of the new Act does not exclude the 13 operation of any State or Territory law in relation to the de facto 14 relationship. 15 Note: Subsection 39A(5) of the new Act will not apply in relation to the de facto relationship 16 because the effect of this item is that a de facto financial cause relating to that 17 relationship cannot be instituted under the new Act. 18 Division 3--De facto relationships linked to earlier 19 participating jurisdictions 20 87 Pre-commencement agreements--made in contemplation 21 of de facto relationships 22 (1) This item applies if: 23 (a) before commencement, 2 people (the couple) who were 24 contemplating entering into a de facto relationship with each 25 other made a written agreement, signed by both of them, with 26 respect to any of the matters (the eligible agreed matters) 27 mentioned in subitem (3); and 28 (b) the agreement was made under a preserved law of an earlier 29 participating jurisdiction; and 30 (c) a court could not, because of the preserved law, make an 31 order under that law that is inconsistent with the agreement 32 with respect to any of the eligible agreed matters; and 33 (d) immediately before commencement: 34 (i) the agreement was in force under the preserved law; and 35 (ii) if the couple had entered into the de facto relationship-- 36 the de facto relationship had not broken down; and 37 (iii) the couple were not married to each other. [Page Break] 2 people. 3 Note: Agreements made in non-referring States are not covered by this item. Those 4 agreements continue to be governed by State law unless they are transformed into 5 Part VIIIAB financial agreements (see section 90UE of the new Act and Division 4 of 6 this Part). 7 (2) For the purposes of the new Act, the agreement is taken, on and after 8 commencement, to be a Part VIIIAB financial agreement made as 9 mentioned in subsection 90UB(1) of the new Act to the extent that the 10 agreement deals with the eligible agreed matters. 11 Note: After commencement, the agreement can only be enforced, varied, terminated or 12 otherwise set aside under the new Act. 13 (3) The matters referred to in paragraph (a) of subitem (1) are the 14 following: 15 (a) how all or any of the: 16 (i) property; or 17 (ii) financial resources; 18 of either member, or members, of the couple at the time when 19 the agreement is made, or at a later time and during the 20 de facto relationship, is to be distributed in the event of the 21 breakdown of the de facto relationship; 22 (b) the maintenance of either member of the couple in the event 23 of the breakdown of the de facto relationship; 24 (c) matters incidental or ancillary to those mentioned in 25 paragraph (a) or (b). 26 (4) For the purposes of paragraph (c) of subitem (1), disregard whether the 27 preserved law permits the court to make such an order if the court varies 28 or sets aside the agreement. 29 88 Pre-commencement agreements--made during de facto 30 relationships 31 (1) This item applies if: 32 (a) before commencement and while in a de facto relationship, 33 the parties to the de facto relationship (the couple) made a 34 written agreement, signed by both of them, with respect to 35 any of the matters (the eligible agreed matters) mentioned in 36 subitem (3); and [Page Break] 2 participating jurisdiction; and 3 (c) a court could not, because of the preserved law, make an 4 order under that law that is inconsistent with the agreement 5 with respect to any of the eligible agreed matters; and 6 (d) immediately before commencement: 7 (i) the agreement was in force under the preserved law; and 8 (ii) the de facto relationship had not broken down; and 9 (iii) the couple were not married to each other. 10 Paragraph (a) extends to an agreement made with one or more other 11 people. 12 Note: Agreements made in non-referring States are not covered by this item. Those 13 agreements continue to be governed by State law unless they are transformed into 14 Part VIIIAB financial agreements (see section 90UE of the new Act). 15 (2) For the purposes of the new Act, the agreement is taken, on and after 16 commencement, to be a Part VIIIAB financial agreement made as 17 mentioned in subsection 90UC(1) of the new Act to the extent that the 18 agreement deals with the eligible agreed matters. 19 Note: After commencement, the agreement can only be enforced, varied, terminated or 20 otherwise set aside under the new Act. 21 (3) The matters referred to in paragraph (a) of subitem (1) are the 22 following: 23 (a) how all or any of the: 24 (i) property; or 25 (ii) financial resources; 26 of either member, or members, of the couple at the time when 27 the agreement is made, or at a later time and during the 28 de facto relationship, is to be distributed in the event of the 29 breakdown of the de facto relationship; 30 (b) the maintenance of either member of the couple in the event 31 of the breakdown of the de facto relationship; 32 (c) matters incidental or ancillary to those mentioned in 33 paragraph (a) or (b). 34 (4) For the purposes of paragraph (c) of subitem (1), disregard whether the 35 preserved law permits the court to make such an order if the court varies 36 or sets aside the agreement. [Page Break] 2 participating jurisdictions 3 89 When this Division applies 4 This Division applies if Parts VIIIAB and VIIIB of the new Act: 5 (a) extend to a de facto relationship; or 6 (b) would, but for item 90, extend to a de facto relationship; 7 only because a State has become a later participating jurisdiction. 8 Note: This Division will not apply to a de facto relationship that breaks down during the 9 period starting at commencement and ending at the transition time for the State if, 10 during that period, section 90UE of the new Act has applied in relation to the de facto 11 relationship. This is because it is section 90UE, and not the State becoming a 12 participating jurisdiction, that has caused Part VIIIAB of the new Act to extend to the 13 de facto relationship. 14 Example 1: Amy and Ben made an agreement in a non-referring State and then moved to, and 15 spent most of their relationship in, an earlier participating jurisdiction. Their 16 relationship broke down after commencement, but before the non-referring State 17 became a later participating jurisdiction. Their residence in the earlier participating 18 jurisdiction means section 90UE of the new Act will cause Amy and Ben's agreement 19 to become a Part VIIIAB financial agreement. 20 Example 2: Cathy and Don made an agreement in a non-referring State and did not move from 21 that State. Their relationship broke down after commencement but before the 22 non-referring State became a later participating jurisdiction. That State becoming a later 23 participating jurisdiction is the only way that Part VIIIAB could only apply to Cathy 24 and Don's relationship. This means this Division, and item 90, will apply. The effect of 25 item 90 is that State law will continue to govern Cathy and Don's agreement. 26 Example 3: During their de facto relationship, Emily and Fred made an agreement in a 27 non-referring State and did not move from that State. Their relationship broke down 28 after the non-referring State became a later participating jurisdiction. That State 29 becoming a later participating jurisdiction is the only way that Part VIIIAB could only 30 apply to Emily and Fred's relationship. This means this Division, and item 92, will 31 apply. The effect of item 92 is that Emily and Fred's agreement will become a 32 Part VIIIAB financial agreement. 33 90 De facto relationships that break down before transition 34 time for a later participating jurisdiction 35 (1) Parts VIIIAB and VIIIB of the new Act do not extend to the de facto 36 relationship if it broke down before the transition time for the State. 37 Note 1: After the transition time, the law of the State will apply to any proceedings etc. to 38 enforce, discharge, suspend, revive or vary an order or injunction in force at the 39 transition time in relation to the maintenance, or the distribution of property, of the 40 parties to the de facto relationship arising out of the breakdown of the de facto 41 relationship. [Page Break] 2 pending at the transition time for an order or injunction in relation to the maintenance, 3 or the distribution of property, of the parties to the de facto relationship arising out of 4 the breakdown of the de facto relationship. 5 Note 3: After the transition time, the law of the State will continue to apply if the parties to the 6 de facto relationship have, before the transition time, made an agreement (to which 7 section 90UE of the new Act had not applied) about financial matters arising from that 8 breakdown. 9 Note 4: After the transition time, the law of the State will continue to apply if the parties to the 10 de facto relationship, after the transition time, make an agreement about financial 11 matters arising from that breakdown. 12 (2) To avoid doubt, section 90RC of the new Act does not exclude the 13 operation of any State or Territory law in relation to the de facto 14 relationship. 15 Note: Subsection 39A(5) of the new Act will not apply in relation to the de facto relationship 16 because the effect of this item is that a de facto financial cause relating to that 17 relationship cannot be instituted under the new Act. 18 91 Pre-transition time agreements--made in contemplation of 19 de facto relationships 20 (1) This item applies if: 21 (a) before the transition time for the State, 2 people (the couple) 22 who were contemplating entering into a de facto relationship 23 with each other made a written agreement, signed by both of 24 them, with respect to any of the matters (the eligible agreed 25 matters) mentioned in subitem (3); and 26 (b) the agreement was made under a preserved law of the State; 27 and 28 (c) either: 29 (i) a court could not, because of the preserved law, make an 30 order under that law that is inconsistent with the 31 agreement with respect to any of the eligible agreed 32 matters; or 33 (ii) a court could not, because of the preserved law, make an 34 order under that law that is with respect to any of the 35 eligible agreed matters to which the agreement applies; 36 and 37 (d) at the transition time for the State, the members of the couple 38 were not the spouse parties to any binding Part VIIIAB 39 financial agreement with respect to any of the eligible agreed 40 matters; and [Page Break] 2 (i) the agreement was in force under the preserved law; and 3 (ii) if the couple had entered into the de facto relationship-- 4 the de facto relationship had not broken down; and 5 (iii) the couple were not married to each other. 6 Paragraph (a) extends to an agreement made with one or more other 7 people. 8 (2) For the purposes of the new Act, the agreement is taken, on and after 9 the transition time, to be a Part VIIIAB financial agreement made as 10 mentioned in subsection 90UB(1) of the new Act to the extent that the 11 agreement deals with the eligible agreed matters. 12 Note: After the transition time, the agreement can only be enforced, varied, terminated or 13 otherwise set aside under the new Act. 14 (3) The matters referred to in paragraph (a) of subitem (1) are the 15 following: 16 (a) how all or any of the: 17 (i) property; or 18 (ii) financial resources; 19 of either member, or members, of the couple at the time when 20 the agreement is made, or at a later time and during the 21 de facto relationship, is to be distributed in the event of the 22 breakdown of the de facto relationship; 23 (b) the maintenance of either member of the couple in the event 24 of the breakdown of the de facto relationship; 25 (c) matters incidental or ancillary to those mentioned in 26 paragraph (a) or (b). 27 (4) For the purposes of paragraph (c) of subitem (1), disregard whether the 28 preserved law permits the court to make such an order if the court varies 29 or sets aside the agreement. 30 92 Pre-transition time agreements--made during de facto 31 relationships 32 (1) This item applies if: 33 (a) before the transition time for the State and while in a de facto 34 relationship, the parties to the de facto relationship (the 35 couple) made a written agreement, signed by both of them, [Page Break] 2 matters) mentioned in subitem (3); and 3 (b) the agreement was made under a preserved law of the State; 4 and 5 (c) either: 6 (i) a court could not, because of the preserved law, make an 7 order under that law that is inconsistent with the 8 agreement with respect to any of the eligible agreed 9 matters; or 10 (ii) a court could not, because of the preserved law, make an 11 order under that law that is with respect to any of the 12 eligible agreed matters to which the agreement applies; 13 and 14 (d) at the transition time for the State, the members of the couple 15 were not the spouse parties to any binding Part VIIIAB 16 financial agreement with respect to any of the eligible agreed 17 matters; and 18 (e) immediately before the transition time for the State: 19 (i) the agreement was in force under the preserved law; and 20 (ii) the de facto relationship had not broken down; and 21 (iii) the parties were not married to each other. 22 Paragraph (a) extends to an agreement made with one or more other 23 people. 24 (2) For the purposes of the new Act, the agreement is taken, on and after 25 the transition time, to be a Part VIIIAB financial agreement made as 26 mentioned in subsection 90UC(1) of the new Act to the extent that the 27 agreement deals with the eligible agreed matters. 28 Note: After the transition time, the agreement can only be enforced, varied, terminated or 29 otherwise set aside under the new Act. 30 (3) The matters referred to in paragraph (a) of subitem (1) are the 31 following: 32 (a) how all or any of the: 33 (i) property; or 34 (ii) financial resources; 35 of either member, or members, of the couple at the time when 36 the agreement is made, or at a later time and during the 37 de facto relationship, is to be distributed in the event of the 38 breakdown of the de facto relationship; [Page Break] 2 of the breakdown of the de facto relationship; 3 (c) matters incidental or ancillary to those mentioned in 4 paragraph (a) or (b). 5 (4) For the purposes of paragraph (c) of subitem (1), disregard whether the 6 preserved law permits the court to make such an order if the court varies 7 or sets aside the agreement. 8 Division 5--Application of new Act to transitioning 9 agreements 10 93 Application of new Act to agreements covered by this Part 11 (1) For the purposes of the application of the new Act to an agreement 12 covered by item 87, 88, 91 or 92: 13 (a) section 90UA of the new Act has effect subject to this Part; 14 and 15 (b) section 90UG of the new Act has effect as if the reference in 16 that section to paragraph 90UE(2)(b) of the new Act included 17 a reference to paragraph (3)(c) of that item; and 18 (c) section 90UH of the new Act is taken not to have been 19 enacted; and 20 (d) section 90UJ of the new Act has effect as if the references in 21 that section to section 90UE of the new Act included 22 references to that item; and 23 (e) subparagraph 90UM(1)(c)(ii) of the new Act has effect as if: 24 (i) the reference in that subparagraph to an order under 25 section 90SM of the new Act included a reference to an 26 order (however described) under a corresponding 27 provision (if any) of the preserved law; and 28 (ii) the reference in that subparagraph to a declaration under 29 section 90SL of the new Act included a reference to a 30 declaration (however described) under a corresponding 31 provision (if any) of the preserved law; and 32 (f) the reference in paragraph 90UM(1)(k) of the new Act to 33 section 90UE of the new Act included a reference to that 34 item; and 35 (g) the reference in subsection 90UM(5) of the new Act to 36 section 90UE of the new Act included a reference to that 37 item; and [Page Break] 2 liability to pay duty or charge (if any) in relation to the 3 agreement if the liability arises before: 4 (i) if the item is item 87 or 88--commencement; or 5 (ii) if the item is item 91 or 92--the transition time. 6 (2) Despite any State or Territory law, a failure to discharge a liability 7 covered by paragraph (h) of subitem (1) in relation to the agreement has 8 no effect for the purposes of the new Act. In particular, the failure does 9 not affect whether the agreement may be presented in evidence in a 10 court for the purposes of the new Act. [Page Break] 2 Schedule 2--Consequential amendments 3 relating to de facto financial matters 4 5 A New Tax System (Family Assistance) Act 1999 6 1 Subparagraph 19(2)(c)(iii) 7 After "maintenance agreement", insert ", a financial agreement (within 8 the meaning of the Family Law Act 1975), a Part VIIIAB financial 9 agreement (within the meaning of that Act)". 10 2 Subparagraph 20A(10)(b)(iii) of Schedule 1 11 After "financial agreement", insert ", or Part VIIIAB financial 12 agreement,". 13 3 Subparagraph 24(3)(a)(iii) of Schedule 1 14 After "financial agreement", insert ", or Part VIIIAB financial 15 agreement,". 16 Bankruptcy Act 1966 17 4 Subsection 5(1) (definition of maintenance agreement) 18 After "financial agreement", insert ", or Part VIIIAB financial 19 agreement,". 20 5 After subsection 35(1) 21 Insert: 22 (1A) If, at a particular time: 23 (a) a party to a de facto relationship is a bankrupt; and 24 (b) the trustee of the bankrupt's estate is: 25 (i) a party to property settlement proceedings in relation to 26 either or both of the parties to the de facto relationship; 27 or 28 (ii) an applicant under section 90SN of the Family Law Act 29 1975 for the variation or setting aside of an order made 30 under section 90SM of that Act in property settlement [Page Break] 2 the de facto relationship; or 3 (iii) a party to maintenance proceedings under Part VIIIAB 4 of the Family Law Act 1975 in relation to the 5 maintenance of one of the parties to the de facto 6 relationship; 7 then, at and after that time, the Family Court has jurisdiction in 8 bankruptcy in relation to any matter connected with, or arising out 9 of, the bankruptcy of the bankrupt. 10 6 Subsection 35(2) 11 Omit "Subsection (1) does", substitute "Subsections (1) and (1A) do". 12 7 At the end of section 35 13 Add: 14 (4) An expression used in subsection (1A) that is also used in the 15 Family Law Act 1975 has the same meaning in that subsection as it 16 has in that Act. 17 8 Subsection 35B(1) 18 After "35", insert "(other than subsection (1A))". 19 9 After subsection 35B(1) 20 Insert: 21 (1A) Despite subsection (1), section 35A does not apply to the Family 22 Court of Western Australia in relation to a de facto financial cause 23 (within the meaning of the Family Law Act 1975). 24 10 Paragraph 40(1)(o) 25 Omit all the words after "accordance", substitute: 26 with: 27 (i) a financial agreement (within the meaning of the Family 28 Law Act 1975); or 29 (ii) a Part VIIIAB financial agreement (within the meaning 30 of the Family Law Act 1975); 31 to which the debtor is a party. 32 11 Section 59A [Page Break] 2 Note: The heading to section 59A is altered by inserting "or VIIIAB" after "VIII". 3 12 Paragraph 116(2)(q) 4 After "spouse", insert ", or a former spouse,". 5 13 At the end of subsection 116(2) 6 Add: 7 ; (r) any property that, under an order under Part VIIIAB of the 8 Family Law Act 1975, the trustee is required to transfer to a 9 former de facto spouse of the bankrupt. 10 14 Paragraph 120(5)(e) 11 After "spouse", insert ", or a former spouse,". 12 15 At the end of subsection 120(5) 13 Add: 14 ; (f) if the transferee is a former de facto spouse of the 15 transferor--the transferee granting the transferor a right to 16 live at the transferred property, unless the grant relates to a 17 transfer or settlement of property, or an agreement, under the 18 Family Law Act 1975. 19 16 Paragraph 121(6)(e) 20 After "spouse", insert ", or a former spouse,". 21 17 At the end of subsection 121(6) 22 Add: 23 ; (f) if the transferee is a former de facto spouse of the 24 transferor--the transferee granting the transferor a right to 25 live at the transferred property, unless the grant relates to a 26 transfer or settlement of property, or an agreement, under the 27 Family Law Act 1975. 28 18 Subsection 140(11) 29 Omit "section 114 of the Family Law Act 1975 (which deals", substitute 30 "section 90SS or 114 of the Family Law Act 1975 (which deal". 31 Child Support (Assessment) Act 1989 [Page Break] 2 Add: 3 ; or (c) a Part VIIIAB financial agreement (within the meaning of 4 that Act). 5 20 Paragraph 152(1)(b) 6 Omit "or a financial agreement within the meaning of the Family Law 7 Act 1975", substitute "a financial agreement (within the meaning of the 8 Family Law Act 1975) or a Part VIIIAB financial agreement (within the 9 meaning of that Act)". 10 21 Subsection 152(1) 11 Omit "or financial agreement" (wherever occurring), substitute ", 12 financial agreement or Part VIIIAB financial agreement". 13 Child Support (Registration and Collection) Act 1988 14 22 Subsection 4(1) (at the end of subparagraph (a)(i) of the 15 definition of collection agency maintenance liability) 16 Add "or". 17 23 Subsection 4(1) (after subparagraph (a)(iii) of the 18 definition of collection agency maintenance liability) 19 Insert: 20 or (iv) a party to a de facto relationship to pay a periodic 21 amount for the maintenance of the other party to the 22 de facto relationship; 23 24 Subsection 4(1) (definition of maintenance agreement) 24 Omit "or a party to a marriage", substitute ", a party to a marriage or a 25 party to a de facto relationship". 26 25 Subsection 4(1) (definition of maintenance agreement) 27 After "financial agreement", insert ", or Part VIIIAB financial 28 agreement,". 29 26 Subsection 4(1) 30 Insert: [Page Break] 2 Family Law Act 1975. 3 27 Subsection 4(1) (after paragraph (d) of the definition of 4 terminating event) 5 Insert: 6 (daa) in a case where the liability relates to the maintenance of a 7 party to a de facto relationship--the marriage of the person 8 unless, under the terms and conditions of the relevant court 9 order or maintenance agreement or otherwise by force of law, 10 the liability is to continue after the marriage of the person; or 11 28 Section 18 12 Before "Subject", insert "(1)". 13 Note: The heading to section 18 is altered by inserting ", or parties to de facto 14 relationships," after "marriages". 15 29 At the end of section 18 16 Add: 17 (2) Subject to section 19, a liability is a registrable maintenance 18 liability if: 19 (a) it is a liability of a party to a de facto relationship to pay a 20 periodic amount for the maintenance of the other party to the 21 de facto relationship; and 22 (b) either of the following subparagraphs applies: 23 (i) it arises under a court order or court registered 24 maintenance agreement; 25 (ii) it is a collection agency maintenance liability. 26 30 At the end of subparagraph 112(1)(b)(ii) 27 Add "or". 28 31 After subparagraph 112(1)(b)(ii) 29 Insert: 30 (iii) the maintenance by a party to a de facto relationship of 31 the other party to the de facto relationship; 32 Federal Magistrates Act 1999 [Page Break] 2 Omit "or 77", substitute ", 77 or 90SG". 3 First Home Saver Accounts Act 2008 4 33 Section 18 (at the end of the definition of family law 5 obligation) 6 Add: 7 ; or (c) a Part VIIIAB financial agreement (within the meaning of the 8 Family Law Act 1975) that is binding because of 9 section 90UJ of that Act. 10 Income Tax Assessment Act 1997 11 34 After paragraph 126-5(1)(d) 12 Insert: 13 (da) something done under: 14 (i) a Part VIIIAB financial agreement (within the meaning 15 of the Family Law Act 1975) that is binding because of 16 section 90UJ of that Act; or 17 (ii) a corresponding written agreement that is binding 18 because of a corresponding foreign law; or 19 35 Subsection 126-5(3A) 20 After "(d)", insert ", (da)". 21 36 After paragraph 126-15(1)(d) 22 Insert: 23 (da) something done under: 24 (i) a Part VIIIAB financial agreement (within the meaning 25 of the Family Law Act 1975) that is binding because of 26 section 90UJ of that Act; or 27 (ii) a corresponding written agreement that is binding 28 because of a corresponding foreign law; or 29 37 Subsection 126-15(5) 30 After "(d)", insert ", (da)". [Page Break] 2 After "(2B)(d)", insert ", (da)". 3 39 Paragraph 126-140(2B)(b) 4 Omit "or subsection 90AE(2) or 90AF(2)", substitute ", subsection 5 90AE(2) or 90AF(2) or section 90SM". 6 40 Paragraph 126-140(2B)(c) 7 Omit "section 79 or subsection 90AE(2) or 90AF(2)", substitute 8 "subsection 90AE(2) or 90AF(2) or section 90SM". 9 41 After paragraph 126-140(2B)(d) 10 Insert: 11 (da) a Part VIIIAB financial agreement (within the meaning of the 12 Family Law Act 1975) that is binding because of 13 section 90UJ of that Act; or 14 Proceeds of Crime Act 2002 15 42 After subparagraph 330(4)(ba)(i) 16 Insert: 17 (ia) an order in proceedings under the Family Law Act 1975 18 with respect to the property of the parties to a de facto 19 relationship (within the meaning of that Act) or either of 20 them; or 21 43 Subparagraph 330(4)(ba)(ii) 22 After "agreement", insert ", or Part VIIIAB financial agreement,". 23 Social Security Act 1991 24 44 Subparagraph 9A(2)(h)(iva) 25 Omit "spouse" (wherever occurring), substitute "partner". 26 45 Subparagraph 9B(2)(h)(iva) 27 Omit "spouse" (wherever occurring), substitute "partner". 28 46 Subparagraph 9BA(2)(f)(vi) [Page Break] 2 47 Paragraph 9C(b) 3 Omit "spouse" (wherever occurring), substitute "partner". 4 Veterans' Entitlements Act 1986 5 48 Subparagraph 5JA(2)(h)(iva) 6 Omit "spouse" (wherever occurring), substitute "partner". 7 49 Subparagraph 5JB(2)(h)(iva) 8 Omit "spouse" (wherever occurring), substitute "partner". 9 50 Subparagraph 5JBA(2)(f)(vi) 10 Omit "spouse" (wherever occurring), substitute "partner". 11 51 Paragraph 5JC(b) 12 Omit "spouse" (wherever occurring), substitute "partner". 13 52 Subparagraph 51(3)(a)(ia) 14 Omit "under", substitute ", or Part VIIIAB financial agreement, within 15 the meaning of". [Page Break] 2 Schedule 3--Amendments relating to financial 3 agreements about marriage 4 Part 1--Clarifying that other persons can be parties 5 Family Law Act 1975 6 1 Subsection 4(1) 7 Insert: 8 spouse party, in relation to a financial agreement, means a party to 9 the agreement who is a party to the contemplated marriage, 10 marriage or former marriage to which the agreement relates. 11 2 Subsection 4(1) 12 Insert: 13 third party, in relation to a financial agreement, means a party to 14 the agreement who is not a spouse party. 15 3 Paragraph 90B(1)(aa) 16 Repeal the paragraph, substitute: 17 (aa) at the time of the making of the agreement, the people are not 18 the spouse parties to any other binding agreement (whether 19 made under this section or section 90C or 90D) with respect 20 to any of those matters; and 21 4 At the end of subsection 90B(1) 22 Add "The people may make the financial agreement with one or more 23 other people.". 24 5 Subsection 90B(2) 25 Omit "them" (wherever occurring), substitute "the spouse parties". 26 6 Subsections 90B(3) and (4) 27 Repeal the subsections, substitute: 28 (3) A financial agreement made as mentioned in subsection (1) may 29 also contain: [Page Break] 2 subsection (2); and 3 (b) other matters. 4 (4) A financial agreement (the new agreement) made as mentioned in 5 subsection (1) may terminate a previous financial agreement 6 (however made) if all of the parties to the previous agreement are 7 parties to the new agreement. 8 7 Paragraph 90C(1)(aa) 9 Repeal the paragraph, substitute: 10 (aa) at the time of the making of the agreement, the parties to the 11 marriage are not the spouse parties to any other binding 12 agreement (whether made under this section or section 90B 13 or 90D) with respect to any of those matters; and 14 8 At the end of subsection 90C(1) 15 Add "The parties to the marriage may make the financial agreement 16 with one or more other people.". 17 9 Subsection 90C(2) 18 Omit "them" (wherever occurring), substitute "the spouse parties". 19 10 Subsections 90C(3) and (4) 20 Repeal the subsections, substitute: 21 (3) A financial agreement made as mentioned in subsection (1) may 22 also contain: 23 (a) matters incidental or ancillary to those mentioned in 24 subsection (2); and 25 (b) other matters. 26 (4) A financial agreement (the new agreement) made as mentioned in 27 subsection (1) may terminate a previous financial agreement 28 (however made) if all of the parties to the previous agreement are 29 parties to the new agreement. 30 11 Paragraph 90D(1)(aa) 31 Repeal the paragraph, substitute: 32 (aa) at the time of the making of the agreement, the parties to the 33 former marriage are not the spouse parties to any other [Page Break] 2 section 90B or 90C) with respect to any of those matters; and 3 12 At the end of subsection 90D(1) 4 Add "The parties to the former marriage may make the financial 5 agreement with one or more other people.". 6 13 Subsection 90D(2) 7 Omit "them" (wherever occurring), substitute "the spouse parties". 8 14 Subsections 90D(3) and (4) 9 Repeal the subsections, substitute: 10 (3) A financial agreement made as mentioned in subsection (1) may 11 also contain: 12 (a) matters incidental or ancillary to those mentioned in 13 subsection (2); and 14 (b) other matters. 15 (4) A financial agreement (the new agreement) made as mentioned in 16 subsection (1) may terminate a previous financial agreement 17 (however made) if all of the parties to the previous agreement are 18 parties to the new agreement. 19 15 Subsections 90DA(3) and (4) 20 Omit "parties" (wherever occurring), substitute "spouse parties". 21 16 Subsection 90DA(5) (definition of declaration time) 22 Repeal the definition, substitute: 23 declaration time means the time when the declaration was signed 24 by a spouse party to the financial agreement (or last signed by a 25 spouse party to the agreement, if both spouse parties to the 26 agreement have signed). 27 17 After section 90DA 28 Insert: [Page Break] 2 agreements take effect 3 (1) A binding financial agreement, to the extent to which it provides 4 for a third party to contribute to the maintenance of a spouse party 5 during the marriage, is of no force or effect. 6 (2) A binding financial agreement, to the extent to which it provides 7 for matters covered by paragraph 90B(3)(b) or 90C(3)(b), is of no 8 force or effect unless and until the marriage breaks down. 9 18 Section 90E 10 Omit "party" (first occurring), substitute "spouse party". 11 19 Subsection 90F(2) 12 Omit "party" (first occurring), substitute "spouse party". 13 20 Paragraph 90G(1)(a) 14 Omit "both", substitute "all". 15 21 Paragraph 90G(1)(b) 16 Omit "party" (first occurring), substitute "spouse party". 17 22 Paragraph 90G(1)(e) 18 Omit "parties and a copy is given to the other", substitute "spouse 19 parties and a copy is given to each of the other parties". 20 23 Paragraph 90J(2)(a) 21 Omit "both", substitute "all". 22 24 Paragraph 90J(2)(b) 23 Omit "party" (first occurring), substitute "spouse party". 24 25 Paragraph 90J(2)(e) 25 Omit "parties and a copy is given to the other", substitute "spouse 26 parties and a copy is given to each of the other parties". 27 26 Paragraph 90K(1)(aa) 28 Omit "either", substitute "a". [Page Break] 2 Omit "parties", substitute "spouse parties". 3 28 Subsection 90MH(4) 4 Omit "parties", substitute "spouse parties". 5 29 Subsection 90MH(5) 6 Omit "party" (first occurring), substitute "spouse party". [Page Break] 2 Part 2--Separation declarations 3 Family Law Act 1975 4 30 Subsection 90DA(1) 5 Repeal the subsection, substitute: 6 (1) A binding financial agreement, to the extent to which it deals with 7 how, in the event of the breakdown of the marriage, all or any of 8 the property or financial resources of either or both of the spouse 9 parties: 10 (a) at the time when the agreement is made; or 11 (b) at a later time and before the termination of the marriage by 12 divorce; 13 are to be dealt with, is of no force or effect until a separation 14 declaration is made. 15 Note: Before the separation declaration is made, the financial agreement will 16 be of force and effect in relation to the other matters it deals with 17 (except for any matters covered by section 90DB). 18 (1A) Subsection (1) ceases to apply if: 19 (a) the spouse parties divorce; or 20 (b) either or both of them die. 21 Note: This means the financial agreement will be of force and effect in 22 relation to the matters mentioned in subsection (1) from the time of 23 the divorce or death(s). 24 31 Subsection 90DA(2) 25 After "(4)", insert ", and may be included in the financial agreement to 26 which it relates". 27 32 Section 90MD (at the end of the definition of declaration 28 time) 29 Add: 30 Note: If a spouse has died, the spouse's legal personal representative may 31 sign a declaration (see subsection 90MP(2)). 32 33 Section 90MI 33 Before "The", insert "(1)". [Page Break] 2 Repeal the paragraph, substitute: 3 (a) if the parties are divorced--a copy of the divorce order that 4 has terminated the marriage; and 5 (aa) if, in the case of a payment split under a superannuation 6 agreement: 7 (i) the parties are not divorced; and 8 (ii) a separation declaration is not part of the superannuation 9 agreement; 10 a separation declaration; and 11 35 At the end of section 90MI 12 Add: 13 (2) For the purposes of subsection (1), the separation declaration must 14 have a declaration time that is not more than 28 days before the 15 service on the trustee. 16 36 After paragraph 90MJ(1)(d) 17 Insert: 18 (da) if the agreement relates to a marriage--the marriage is 19 broken down at the operative time; and 20 37 Subsection 90MP(1) 21 After "section", insert ", and may be included in the superannuation 22 agreement to which it relates". 23 38 At the end of subsection 90MP(2) 24 Add "For this purpose, if a spouse has died the spouse's legal personal 25 representative may sign the declaration.". 26 39 After subsection 90MP(4) 27 Insert: 28 (4A) If either or both of the spouses have died, then the declaration must 29 state: 30 (a) if section 90MQ applies to the declaration--that at the most 31 recent time when both spouses were alive: 32 (i) the spouses were married; but [Page Break] 2 apart for a continuous period of at least 12 months 3 immediately before that time; or 4 (b) if section 90MQ does not apply to the declaration--that the 5 spouses were married, but separated, at the most recent time 6 when both spouses were alive. 7 Subsections (3) and (4) have effect subject to this subsection. 8 40 Subsection 90MQ(1) 9 Repeal the subsection, substitute: 10 (1) This section applies to a declaration if: 11 (a) if both spouses are alive at the declaration time--at the 12 declaration time; or 13 (b) otherwise--at the most recent time when both spouses were 14 alive; 15 the total withdrawal value for all the superannuation interests of the 16 member spouse is more than the member spouse's low rate cap 17 amount for the income year in which that time occurs. 18 41 At the end of section 90MZG 19 Add: 20 (4) Subsection (1) does not apply in relation to a declaration if a 21 spouse to which the declaration relates died before the declaration 22 was made. [Page Break] 2 Part 3--Matrimonial causes 3 Family Law Act 1975 4 42 Subsection 4(1) (paragraph (eaa) of the definition of 5 matrimonial cause) 6 Omit all the words after "paragraphs,", substitute: 7 proceedings with respect to a financial agreement that are 8 between any combination of: 9 (i) the parties to that agreement; and 10 (ii) the legal personal representatives of any of those parties 11 who have died; 12 (including a combination consisting solely of parties or 13 consisting solely of representatives); or 14 43 Paragraphs 4A(1)(a) and (b) 15 Repeal the paragraphs, substitute: 16 (a) any combination of: 17 (i) the parties to a financial agreement; and 18 (ii) the legal personal representatives of any of those parties 19 who have died; 20 (including a combination consisting solely of parties or 21 consisting solely of representatives); and 22 (b) any of the following: 23 (i) a creditor; 24 (ii) if a creditor is an individual who has died--the legal 25 personal representative of the creditor; 26 (iii) a government body acting in the interests of a creditor; 27 44 Subsection 4A(2) (definition of creditor) 28 Omit "either of the parties" (wherever occurring), substitute "a party". [Page Break] 2 Part 4--Other amendments 3 Family Law Act 1975 4 45 Subsection 90F(2) 5 Omit "subsection 90C(1)", substitute "subsection 90B(1), 90C(1)". 6 46 Paragraph 90MU(1)(b) 7 Omit "court", substitute "member spouse and the non-member spouse". 8 47 Subsection 90MZB(8) (after paragraph (a) of the definition 9 of eligible person) 10 Insert: 11 (aa) if the member has died--the legal personal representative of 12 the member; or 13 48 Subsection 90MZB(8) (after paragraph (b) of the definition 14 of eligible person) 15 Insert: 16 (ba) if a spouse of the member has died--the legal personal 17 representative of the spouse; or [Page Break] 2 Schedule 4--Other measures 3 4 Family Law Act 1975 5 1 At the end of subsection 60I(8) 6 Add: 7 ; (d) a certificate to the effect that the person began attending 8 family dispute resolution with the practitioner and the other 9 party or parties to the proceedings in relation to the issue or 10 issues that the order would deal with, but that the practitioner 11 considers, having regard to the matters prescribed by the 12 regulations for the purposes of this paragraph, that it would 13 not be appropriate to continue the family dispute resolution. 14 Proceeds of Crime Act 2002 15 2 Paragraph 330(4)(ba) 16 Before "the property has", insert "if". 17 Note: This item fixes a grammatical error.